October 2025 Longshore Maritime Update No. 317
Notes from your Updater:
The Department of Labor has announced the National Average Weekly Wage that is applicable for the 12-month period beginning October 1, 2025 and ending September 30, 2026. The National Average Weekly Wage is $1,041.35. Consequently, the maximum compensation rate for total disability and death for the period beginning October 1, 2025, and extending to September 30, 2026, is $2,082.70, and the minimum compensation rate (not always the minimum rate and not applicable to employees covered by the Defense Base Act) payable for disability incurred after October 1, 2025, is $520.68 per week. Cost-of-living adjustments effective on October 1, 2025, are 4.18%.
On August 6, 2025, Judge Long of the United States District Court for the Eastern District of Louisiana dismissed the racial discrimination claims brought under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. Section 1981 by Kennor Harrison, an African-American male and aspiring captain, who was not chosen by John W. Stone Oil Distributors for its Steersman Program (to train certain qualifying employees to pilot its fleet of vessels). See Harrison v. John W. Stone Oil Distributors, LLC, No. 2:23-cv-5037, 2025 U.S. Dist. LEXIS 150967 (E.D. La. Aug. 6, 2025).
On August 18, 2025, Judge Pechman of the United States District Court for the Western District of Washington held that a maritime carpenter employed by the Port of Seattle, who was discharged by the Port for declining to take the COVID-19 vaccine (the Port refused to accommodate his religious objections to the vaccine on the ground of undue hardship) failed to sufficiently state federal and state constitutional and statutory causes of action against the Port, but the Judge allowed the worker to amend his claims. See Novelozo v. Port of Seattle, No. 2:25-cv-111, 2025 U.S. Dist. LEXIS 159812 (W.D. Wash. Aug. 18, 2025).
On August 20, 2025, the United States Court of Appeals for the Ninth Circuit affirmed the decision of Judge Gleason of the United States District Court for the District of Alaska that the Alaska National Interest Lands Conservation Act includes navigable waters within the areas to which rural Alaska residents, who fish and hunt for subsistence purposes, are given priority over others who hunt and fish on public lands, and that included a stretch of the Kuskokwim River within the Yukon Delta National Wildlife Refuge. See United States v. Alaska, No. 24-2251, 2025 U.S. App. LEXIS 21292 (9th Cir. Aug. 20, 2025) (Callahan).
In the July 2025 Update, we reported that the United States Court of Appeals for the Ninth Circuit addressed the jurisdictional dispute between the International Longshore and Warehouse Union (ILWU) and the International Association of Machinists and Aerospace Workers (IAM) with respect to maintenance work at SSA Terminals’ Terminal 5 at the Port of Seattle, Washington. The National Labor Relations Board assigned the work to IAM-represented mechanics, and the ILWU filed a grievance against SSA Terminals under its collective bargaining agreement, seeking the value of the work assigned to IAM. An administrative law judge awarded the ILWU damages for the lost opportunity so that SSA Terminals would have to pay twice for the work, and SSA Terminals filed an unfair labor practice charge to which the ILWU claimed its conduct was immunized by the work-preservation defense. An administrative law judge rejected the defense, and the NLRB ordered the ILWU to cease and desist from pursuing the maintenance work at Terminal 5. The Ninth Circuit reversed, holding that its decision in Kinder Morgan allowed the ILWU to raise the work-preservation defense. Judge Miller, who wrote the decision for the Ninth Circuit, also concurred to suggest that the Ninth Circuit should reconsider Kinder Morgan en banc because it was wrongly decided. See International Longshore and Warehouse Union v. National Labor Relations Board, Nos. 23-632, 23-658, 23-780, and 23-793, 2025 U.S. App. LEXIS 15101 (9th Cir. June 18, 2025) (petitions for rehearing en banc were filed by the National Labor Relations Board and the International Association of Machinists and Aerospace Workers). Meanwhile, the Ninth Circuit applied the work-preservation doctrine as a complete defense to the claims brought by Samson Tug & Barge Co. against International Longshore & Warehouse Union, Alaska Longshore Division and Unit 222, under the Labor Relations Management Act in connection with longshore work conducted at the Womens Bay terminal owned by Matson Navigation Co., which is a signatory to the All-Alaska Longshore Agreement. See Samson Tug & Barge Co. v. International Longshore & Warehouse Union, Nos. 24-5730, 24-6017, 2025 U.S. App. LEXIS 21565 (9th Cir. Aug. 22, 2025) (per curiam) (Samson Tug filed a petition for rehearing en banc).
On August 25, 2025, Judge Lin of the United States District Court for the Northern District of California held that a crewmember’s suit in California state court against Matson Navigation and the Masters, Mates, & Pilots union for assault and battery related to the crewmember’s decision not to obtain a COVID-19 vaccination that was required to work on Matson vessels was removable to federal court under the National labor Relations Act, and she dismissed his claim against the union as untimely. As the federal claim was dismissed, Judge Lin remanded the suit against Matson to state court. See Martin v. Masters, Mates & Pilots, No. 3:25-cv-4382, 2025 U.S. Dist. LEXIS 165061 (Aug. 25, 2025).
On August 27, 2025, Judge Crone of the United States District Court for the Eastern District of Texas sentenced V.Ships Norway to a fine of $2 million (and four years’ probation) after V.Ships Norway pleaded guilty to violation of the Act to Prevent Pollution from Ships for entering into the Ports of Baton Rouge, Louisiana and Port Arthur, Texas with a falsified oil record book (after dumping oil-contaminated waste into the ocean from the M/T SWIFT WINCHESTER). See United States v. V.Ships Norway, A.S., Nos. 1:25-cr-39, 1:25-cr-45 (E.D. Tex. Aug. 27, 2025).
On August 29, 2025, the United States Court of Appeals for the D.C. Circuit rejected the challenge of environmental groups to the five-year leasing schedule adopted in 2023 by the Department of the Interior for oil and gas drilling and exploration on the outer Continental Shelf for the period from 2024 to 2029 (authorizing up to three lease sales in the Gulf of America). See Healthy Gulf v. United States Department of the Interior, No. 24-1024, 2025 U.S. App. LEXIS 22249 (D.C. Cir. Aug. 29, 2025) (Childs).
On September 22, 2025, the Eleventh Circuit reversed the decision of Judge Moreno of the United States District Court for the Southern District of Florida and held that inaccuracies in the description of goods did not alter the rule that title to the goods and risk of loss in a “shipment contract” passed to the buyer (in connection with theft of goods during transit from the shipper to the buyer) when the goods were properly delivered to the carrier for shipment to the buyer. See Certain Underwriters at Lloyd’s London v. Scents Corp., No. 24-12253, 2025 U.S. App. LEXIS 24477 (11th Cir. Sept. 22, 2025) (per curiam).
On September 22, 2025, Judge Lamberth of the United States District Court for the District of Columbia granted a preliminary injunction in favor of Revolution Wind, LLC, staying the August 22, 2025 Order issued by the Bureau of Ocean Energy Management halting all ongoing activities related to the Revolution Wind Project on the outer Continental Shelf (15 miles east of Block Island, Rhode Island and 15.7 miles from Newport, Rhode Island) that is approximately 80% complete. See Revolution Wind, LLC v. Burgum, No. 1:25-cv-2999 (D.D.C. Sept. 22, 2025).
On September 23, 2025, the D.C. Court of Appeals set aside, as arbitrary and capricious, the portion of the Rule enacted in 2024 by the Federal Maritime Commission prohibiting common carriers from invoicing parties that are not in contractual privity with the carrier for demurrage and detention fees, noting that the Rule prohibited carriers from invoicing motor carriers even though they are in contractual privity. See World Shipping Council v. FMC, No. 24-1088, 2025 U.S. App. LEXIS 24512 (D.C. Cir. Sept. 23, 2025) (Srinivasan).
On the LHWCA Front . . .
From the federal appellate courts
Ninth Circuit affirmed summary judgment that the vessel did not breach the turnover duty by turning over the vessel to the stevedore in Alaska in an icy condition and affirmed the judge’s trial finding that the vessel did not violate the active control duty by trying to de-ice the hold where the longshore workers were unloading frozen fish, as an expert stevedore would not have reasonably expected the crew to remove all the ice from the deck as it formed; Nystrom v. Khana Marine Ltd., No. 24-2553, 2025 U.S. App. LEXIS 22158 (9th Cir. Aug. 28, 2025) (per curiam).
Elias Nystrom was employed as a longshore worker by Pacific Stevedoring in Dutch Harbor, Alaska to assist in unloading packages of frozen fish from the reefer vessel M/V SUAH. His shift was scheduled to last about 18 hours. He completed work in two holds of the vessel and entered Hold 3 after the gang boss warned him that conditions would be “really icy” and that the hold “was going to be a mess.” The warning was prescient. The workers encountered two to three millimeters of ice on the walking surface, and several complained to the vessel’s crew about the slippery condition. Two crewmembers worked alongside the longshore workers to de-ice the walking surface, but Nystrom slipped on the ice while carrying a package of frozen fish. Nystrom brought this suit in federal court in Alaska against the owner and manager of the vessel under Section 5(b) of the LHWCA, and Nystrom argued that the defendants breached the turnover duty and the active control duty from Scindia. The defendants presented the declaration from the president of Pacific Stevedoring (as an expert on stevedoring) that an experienced longshore worker in Dutch Harbor can typically work safely around the conditions faced by Nystrom and that it was the duty of the stevedore and longshore workers to ensure that ice is safely cleared before continuing the work. Nystrom noted that the vessel crew had undertaken to de-ice the hold, eliminating any reasonable basis for relying on the stevedore to correct the hazardous condition. However, Judge Kindred held that the turnover duty relates to the condition of the vessel at the commencement of operations. As the actions of the crew occurred after the turnover of the vessel, and as an experienced longshore worker could reasonably work on icy surfaces on a reefer vessel in Dutch Harbor, Judge Kindred held that the claim for violation of the turnover duty failed. However, once the crew began to de-ice the hold, there was a genuine issue whether the vessel had active control over the area and had negligently failed to remove the ice that caused Nystrom’s fall. Therefore, Judge Kindred denied summary judgment on the claim for violation of the active control duty. See March 2023 Update.
Judge Kindred then held a four-day bench trial to determine whether the vessel breached the active control duty. Nystrom testified that the vessel’s bosun was in the hold and that two crewmembers were actively removing ice as it formed in the hold; however, Judge Kindred did not find his testimony credible. Nonetheless, even if he credited the testimony that there were two crewmembers in the hold breaking ice, Judge Kindred did not believe that this equated to control of the hold so as to invoke the active control duty, particularly when viewed from the perspective of an expert/experienced stevedore working in Alaska. Judge Kindred concluded that an expert stevedore would not have reasonably expected the crew to remove all ice from the deck as it formed. In essence, the vessel owner is entitled to rely on the stevedore to know how to navigate icy conditions in freezer holds, and the vessel was not negligent in cleaning ice as it formed. Therefore, Judge Kindred granted judgment that the vessel was not negligent. See April 2024 Update.
Nystrom appealed to the Ninth Circuit, which agreed that Judge Kindred properly granted summary judgment on the turnover claim. Assuming that there was a dispute about the condition of the vessel at the time of turnover to the stevedore, Nystrom failed to present evidence to refute the showing that “slippery conditions are not an unreasonable impediment to professional longshoremen in Dutch Harbor” (the president of Pacific Stevedoring stated that the longshore workers “routinely work in icy and slippery conditions”). As to the finding with respect to the active control duty, the Ninth Circuit noted the factual dispute about the condition of the cargo deck that was resolved by Judge Kindred with the finding that the deck “was not covered in ice and there was no ice or slick condition beyond the usual conditions reasonably expected by [the company’s] longshoremen in an open freezer hold exposed to the elements.” Judge Kindred’s findings were supported by the evidence in the record and, “in any event, the crew’s alleged actions were not the kind of substantial ‘control of cargo operations’ implicating the active control duty.” Accordingly, the Ninth Circuit affirmed the judgment denying Nystrom’s claims against the vessel under Section 5(b) of the LHWCA.
From the federal district courts
Magistrate Judge granted leave to file an amended complaint to withdraw the Rule 9(h) designation in a suit seeking contribution/indemnity with respect to an injury to a cargo surveyor, after the pleadings deadline expired, when the District Judge expressed reservations in a status conference that the case was to be a judge-tried case; Tokio Marine Specialty Insurance Co. v. Bernhard Schulte Ship Management (India) Pte. Ltd., No. 2:24-cv-2754, 2025 U.S. Dist. LEXIS 151794 (E.D. La. Aug. 7, 2025) (North).
On February 5, 2022, Regin Moquete, a surveyor employed by Maritech Commercial, was injured while conducting an inspection of the cargo holds on the M/V YANGTZE CROWN that was docked at the ADM Grain Co. facility in Ama, Louisiana. While Moquete was conducting the inspection, employees of Central States Fumigation boarded the vessel to fumigate it with phosphine gas (to kill any infestation in the holds prior to loading new cargo). A roll of PVC tubing that was part of Central States’s fumigation supplies was thrown into the hold, striking Moquete on his head, and Moquete brought suit in Louisiana state court against Central States. Central States settled with Moquete, and the insurers for Central States bought this action in federal court on November 25, 2024 against Bernhard Schulte Ship Management (India) as owner and operator of the YANGTZE CROWN, asserting that a member of the crew of the vessel dropped the roll of PVC tubing into the hold. The insurers for Central States sought contribution or indemnity for the settlement, basing jurisdiction on admiralty under Rule 9(h). Central States filed an amended complaint on February 13, 2025, adding Yangtze Crown Pte. as the owner of the vessel and describing Bernhard Schulte as the vessel manager and employer of the crew. Central States continued to assert admiralty as the basis for jurisdiction and to designate the case as brought under Rule 9(h). The case was set for a bench trial before Judge Africk on October 20, 2025 (with a pleadings deadline of April 25, 2025). A status conference was held on April 24, 2025, and Judge Africk “expressed reservations” that the case was to be a judge-tried case with the numerous factual and credibility determinations to be made based on the conflicting evidence. On June 24, 2025, after the deadline for amendment to pleadings, Central States moved to amend its complaint to base jurisdiction on diversity and to withdraw its Rule 9(h) designation. The vessel defendants objected to the amendment, asserting that Central States failed to show good cause under Rule 16 for an amendment after the deadline for amendment of pleadings expired and that it was prejudiced because it had not procured expert witnesses in the belief that the district judge would understand the legal issues. Magistrate Judge North answered that Central States offered a reasonable explanation for the failure to timely move for leave to amend when the amendment was sparked by Judge Africk’s comments on April 24, 2025 about conflicting evidence. As to the prejudice to the defendants, Magistrate Judge North noted that Judge Africk had recently continued the case until April 2026, and the deadlines for expert designations and discovery had been extended. Therefore, Magistrate Judge North granted leave to file the amended complaint.
Judge agreed to allow jury to decide whether replacement of gangway (a year and a half after a petrochemical inspector was injured when the gangway gave way) was an act of spoliation for which the jury could infer that the lost evidence was unfavorable to the dock owner; inspector’s orthopedic surgeon was permitted to provide medical opinions despite the lapse in her board certification, and medical malpractice complaints filed against her were not admissible; inspector’s safety expert was allowed to opine on the securing of the gangway but not on whether a safety net may have lessened the impact of the fall of the gangway, and he was allowed to testify about the effect of passing vessels on moored vessels but not on the effects of any specific vessel; Cockburn v. Apex Oil Co., No. 2:22-cv-2058, 2025 U.S. Dist. LEXIS 162348, 163312 (E.D. La. August 21, 22, 2025) (Ashe).
Opinion Waguespack and Frankel
Cline Cockburn was employed by AmSpec as a petrochemical inspector and was performing work for Marathon Petroleum on the M/V SAN ROBERTO, owned and operated by Buffalo Marine Service. The vessel was moored at a dock owned and operated by Apex Co. in Mt. Airy, Louisiana. Cockburn was injured when the gangway from the vessel to the dock gave way. Cockburn brought this suit in federal court in Louisiana against Apex, Marathon, Buffalo Marine, and the SAN ROBERTO, asserting claims under the general maritime law, LHWCA Section 5(b), and Louisiana law. Apex brought a third-party action against Cockburn’s employer, AmSpec, seeking defense and indemnity pursuant to a contract giving AmSpec’s employees the right to access Apex’s facilities to perform work. AmSpec and Apex filed cross-motions for summary judgment with respect to Apex’s claim for defense and indemnity. The language of the agreement provided that AmSpec was granted the right to access Apex’s terminals for the purpose of performing work or providing services as specified under contracts or purchase orders with Apex. The agreement then stated that AmSpec would indemnify Apex from suits involving the exercise by AmSpec or its employees of the privileges granted by Apex to AmSpec under the agreement. AmSpec argued that the indemnity was not applicable because AmSpec was performing work for Marathon, not Apex, so AmSpec was not using the privilege of access that was granted by the agreement. Apex responded that the agreement applied because it was the only means by which AmSpec could access Apex’s secure terminal facility. As AmSpec was performing work for Marathon, Judge Ashe believed that it was clear and unambiguous that the indemnity did not apply. He explained: “If Apex intended for the access agreement to apply any time AmSpec’s employees entered its terminal facility, regardless of the contract or purchase order under which AmSpec was working, Apex should have said so in the agreement. It did not.” Therefore, Judge Ashe granted summary judgment to AmSpec, dismissing Apex’s third-party claim. See October 2024 Update.
Apex, which owned the dock, owned the gangway that was involved in the accident, but Apex asserted that the gangway was controlled and maintained by non-party Petroleum Fuel and Terminal Co. The terminal manager for Petroleum Fuel, Eric Plaisance, and the dockman for Petroleum Fuel, Jeff Cambre, inspected the gangway after the accident and found nothing wrong with it. The gangway remained in use for more than a year and a half after the incident when it was replaced by Plaisance. Cockburn filed a motion seeking an adverse presumption against Apex for spoliation, and Apex moved to preclude any evidence or argument of spoliation. Apex did not dispute that it had an obligation to preserve evidence at the time the gangway was replaced as suit had been filed. But it disputed that it had control over the gangway and that it had the requisite bad faith. Cockburn argued that Apex had control over Petroleum Fuel, but the relationship between the entities with regard to the incident was “murky, at best.” And, it was unclear to Judge Ashe whether the destruction occurred with a culpable state of mind. Therefore, Judge Ashe declined to grant an adverse presumption, but he did not bar Cockburn from introducing evidence or argument on spoliation, agreeing that he would instruct the jury that “if it finds that Apex intentionally scrapped the gangway to prevent its use as evidence in this litigation, the jury may, but is not required to, infer that the lost evidence would have been unfavorable to Apex.
Judge Ashe was presented with motions challenging the opinions of Dr. Alexis Waguespack, Cockburn’s treating orthopedic surgeon, and Jordan Frankel, Cockburn’s life care planner. Buffalo Marine and Apex moved to exclude any expert opinions of Dr. Waguespack (with respect to causation and medical necessity), asserting that she lacked expertise because her board certification had lapsed during her treatment of Cockburn. They also challenged the reliability of her opinions based on contradictory evidence and her reliance on information from Cockburn that lacked credibility. Cockburn sought to exclude evidence of malpractice complaints against Dr. Waguespack, but Apex and Buffalo Marine argued that they were relevant to her credibility because she had not been truthful about the complaints. Judge Ashe denied the arguments of Buffalo Marine and Apex, finding Dr. Waguespack to be qualified from her long career as an orthopedic surgeon and her history of treating Cockburn. The reliability of her opinions did not go to the admissibility and was subject to cross-examination. Judge Ashe also agreed that the malpractice claims were more prejudicial than their probative value and would not be admitted, although he agreed that the lapse of board certification would be admitted. The ruling on Dr. Waguespack decided the motion with respect to life care planner Frankel, as the objection was that Frankel’s opinions were based on the opinions of Dr. Waguespack with respect to future medical treatment.
Apex and Buffalo Marine also objected to the opinions of Cockburn’s safety expert, Captain Ronald Campana, with respect to the gangway and the effect of a passing vessel. Apex and Buffalo Marine contested the opinions that the gangway should not have been tied (or tied so tightly) on the dock end, that the gangway should have been secured to the vessel with two ropes instead of one, and that the gangway should have had wheels, arguing that Campana did not cite any industry standards, codes, or other authorities to support his opinions. However, Judge Ashe disagreed, reasoning that the opinions fell with Campana’s expertise and were based on application of his long experience. Apex and Buffalo Marine objected to Campana’s opinion that there should have been a safety net below the gangway in accordance with federal regulations, asserting that the purpose of the net is to prevent workers from falling into the water, and Cockburn did not fall into the water. Cockburn responded that the net would have prevented the gangway from falling or lessened the impact of its fall, but Judge Ashe believed that this opinion was beyond Campana’s expertise. Thus, Campana could testify that the regulation was violated but could not testify that the net would have prevented the gangway from falling or lessened Cockburn’s injuries. Finally, Apex and Buffalo Marine objected to Campana’s testimony regarding the effect that a passing vessel may have had on the incident and gangway configuration. Judge Ashe believed that Campana was qualified from his experience to testify as to the effect that passing vessels may have on moored vessels and as to the vessels that were in the area based on MRTIS data. However, Judge Ashe declined to allow opinions on the precise impact a passing vessel may have had on the SAN ROBERTO as Campana is not qualified to, and did not perform, calculations to explain how and in what direction a specific passing vessel could have caused the SAN ROBERTO to move.
Failure of beneficiaries of shipyard worker to produce expert reports to establish specific causation with respect to the claim that the worker’s lung cancer was caused by exposure to asbestos resulted in the dismissal of the claims against the shipyard and asbestos suppliers; Lewis v. Taylor-Seidenbach, Inc., No. 2:23-cv-6764, 2025 U.S. Dist. LEXIS 165321 (E.D. La. Aug. 26, 2025) (Guidry).
The beneficiaries of Brouney Lewis, who was employed at Avondale Shipyards from 1966 to 2012 as a painter and welder, claim that he died from lung cancer caused by his exposure to asbestos-containing products while he worked at the shipyard. They brought this suit against Avondale and suppliers of asbestos products in state court in Orleans Parish, Louisiana, and Avondale removed the case to federal court. The plaintiffs did not identify any experts or produce expert reports, and the defendants moved for summary judgment, arguing that the plaintiffs could not establish specific medical causation. As the plaintiffs did not support a foundational element of their asbestos exposure claims, Judge Guidry granted summary judgment and dismissed the claims with prejudice.
Allegation of heightened risks associated with the dangerous maritime construction environment did not save discrimination claims of shipyard deck electrician; Arnold v. Huntington Ingalls Inc., No. 2:22-cv-384, 2025 U.S. Dist. LEXIS 167261 (E.D. Va. Aug. 27, 2025) (Smith), adopting recommendation of 2025 U.S. Dist. LEXIS 168355 (E.D. Va. July 29, 2025) (Krask).
Faline Arnold, worked for New Port News Shipbuilding as a deck electrician. She made complaints that she was bullied and sexually harassed in her work, and she eventually resigned. She brought this suit in federal court in Virginia against Huntington Ingalls, with claims for Title VII sexual harassment/hostile work environment, interference with Family and Medical Leave Act leave, retaliation, and constructive discharge. Huntington Ingalls moved for summary judgment on the claims, and Magistrate Judge Krask recommended that the motion be granted, finding insufficient evidence of any violation that was timely presented to the EEOC. Arnold objected to the recommendation, accusing Magistrate Judge Krask of “ignoring the impact of the ‘[h]eightened [r]isks’ associated with the ‘dangerous maritime construction environment’ on Plaintiff’s claims,” but Judge Smith overruled Arnold’s objections and dismissed the suit with prejudice.
Shipyard worker employed by Puget Sound Naval Shipyard was not entitled to sue the OWCP for denial of his benefits under the FECA (and his claim for resulting damages) under the Federal Tort Claims Act or the LHWCA; Allen v. United States Department of Labor Office of Worker’s Compensation, No. 3:25-cv-5139, 2025 U.S. Dist. LEXIS 168163 (W.D. Wash. Aug. 28, 2025) (Cartwright).
Frank Allen worked as a rigger and rigger’s assistant at the Puget Sound Naval Shipyard. He injured his neck, shoulders, and back in 1989, and he was placed on permanent disability. On April 26, 2011, Allen was evaluated by orthopedic surgeon Patrick Bays, who determined that Allen’s injury had healed and that he could return to work as a rigger. The OWCP terminated Allen’s benefits. Allen contacted Puget Sound Naval Shipyard about returning to work, but after completing a physical examination, Allen complained of increased low back pain and bilateral knee pain. He filed a claim, but the OWCP denied it on the basis that he was not an employee at the time of the injury. In May 2012, the OWCP requested a referee examination by Dr. Richard Johnson, who found that Allen was totally disabled. His benefits were reinstated, but “not before harm was done.” Allen brought suit in federal court in Washington against the OWCP, claiming that he “was injured as a proximate result of the claims examiner’s negligent decision as it required him to go back to work.” He asserted that he was “‘injured while taking’ the return-to-work exam and that the claims examiners wrongly refused to accept a related claim.” He also accused the OWCP of fraud and misrepresentation for stating that “they would train the Plaintiff in a different job but failed to do so.” The OWCP moved to dismiss Allen’s suit, arguing that the Federal Employees’ Compensation Act provides the exclusive remedy for Allen’s claims. Judge Cartwright began by noting that “FECA is not all encompassing; it covers only injuries incurred at work, like a worker’s compensation statute.” Thus, Judge Cartwright was charged with “determining where FECA’s exclusive reign ends—and the [Federal Tort Claims Act’s] begins.” In this case, Allen argued that his claim was wrongfully denied because he sustained his injuries in the performance of his duties (for example, he claimed that he was injured as a result of the claims examiner’s decision requiring him to go back to work and the negligent termination of his medical and compensation benefits. Accordingly, Allen’s exclusive remedy was under the FECA, and Judge Cartwright dismissed the claim under the FTCA for lack of subject matter jurisdiction. Allen also sought benefits under the LHWCA, arguing that he was injured in a maritime occupation on navigable waters. Judge Cartwright dismissed that claim as employees of the United States are excluded from the LHWCA in Section 3(b). Finally, Judge Cartwright dismissed the claims for fraud and misrepresentation as they are excluded from the waiver of sovereign immunity in the FTCA.
Judge remanded asbestos-exposure case arising from death of a shipyard worker (that was removed under the Federal Officer Removal Statute) based on the post-removal disclaimer waiving all claims of asbestos exposure on Navy and Coast Guard vessels; Pappagallo v. Redco Corp., No. 5:25-cv-1852, 2025 U.S. Dist. LEXIS 168523 (E.D. Pa. Aug. 29, 2025) (Gallagher).
Raffaele (Ralph) Pappagallo, who worked for Bethlehem Steel at the Hoboken Shipyard, died from lung cancer, and his beneficiaries brought suit against John Crane and other suppliers of asbestos in the Philadelphia County Court of Common Pleas, asserting that Pappagallo’s lung cancer was caused by asbestos exposure during his work at the Hoboken Shipyard. John Crane removed the suit to federal court based on the Federal Officer Removal Statute, and the beneficiaries moved to remand the case based on their waiver of any claims arising out of work that Pappagallo may have performed in maintaining and repairing Navy or Coast Guard vessels. Judge Gallagher concluded that the beneficiaries sufficiently waived all claims of asbestos exposure on government vessels, explaining: “Their disclaimer clearly carves out certain claims based on location such that any alleged injury could not have happened under the direction of a federal officer, and the state court will not be required to determine whether Defendants were acting under the direction of the federal government at the time they provided the gaskets and packing materials to the non-government vessels Mr. Pappagallo worked on.” The defendants argued that the disclaimer was ineffective to require a remand because John Crane’s federal work was inextricably related to the conduct alleged in the complaint so that any relief would necessarily implicate John Crane’s work for the federal government. The defendants added that asbestos exposure is an indivisible injury that results from cumulative lifetime exposure. Judge Gallagher disagreed, reasoning that the disclaimer was “purely location-based” and that was sufficient to block removal because the defendants’ conduct in supplying asbestos-containing materials to commercial ships could be “disconnected” from their conduct in supplying asbestos-containing material to Navy and Coast Guard vessels. The state court would not have to apportion the exposure between sources as the only sources from which they sought to recover are commercial vessels. Finally, John Crane argued that the beneficiaries could not defeat removal by their post-removal disclaimer. Judge Gallagher answered that the court had to exercise its discretion whether to exercise supplemental jurisdiction over the remaining claims as the claims giving rise to federal jurisdiction under the Federal Officer Removal Statute had been dismissed. Concluding that principles of judicial economy, convenience, and fairness to the parties weighed in favor of remand, Judge Gallagher remanded the case to state court. John Crane and another defendant filed notices of appeal on September 2 and 4, 2025.
Judge allowed removal of suit brought by shipyard worker (seeking to recover for the death of his spouse for exposure to asbestos on the worker’s clothes and in his personal vehicle) based on the Federal Officer Removal Statute, but the Judge granted summary judgment to the plaintiff on the shipyard’s Boyle and Yearsley defenses; Steib v. Huntington Ingalls, Inc., No. 2:24-cv-2486, 2025 U.S. Dist. LEXIS 171047 (E.D. La. Sept. 3, 2025) (Guidry).
Raymond Steib, Sr. worked at Avondale Shipyards from 1968 to 2011. His wife died from mesothelioma that Steib attributed to exposure to asbestos dust from Steib’s work clothes and personal vehicle. Steib filed suit in state court in Orleans Parish, Louisiana against Avondale and other parties, asserting that Avondale failed to warn Steib and his wife about the dangers of asbestos dust exposure and failed to enact adequate safety measures. Steib’s petition disclaimed any causes of action predicated on exposure to asbestos dust and injuries resulting from exposure to asbestos dust “or committed at the direction of any and all federal officers, or committed at the direction of an officer of the United States government.” Avondale removed the suit to federal court based on the Federal Officer Removal Statute, arguing that it was a federal contractor required to use asbestos-containing products. Steib filed a motion to remand followed by a motion for partial summary judgment on Avondale’s Yearsley and Boyle defenses. Judge Guidry denied the motion to remand, reasoning that the negligence in failing to warn Steib and his wife about the harmful effects of asbestos exposure was “negligence []connected [to] the installation of asbestos during the [construction and] refurbishment of” Navy ships. However, Judge Guidry noted the numerous decisions in which summary judgment was granted against Avondale on the Yearsley and Boyle defenses. The ultimate rejection of the defenses did not mean that Avondale did not have a sufficiently colorable argument in favor of removal. But Judge Guidry declined to grant Avondale a continuance in order to develop more evidence and granted the motion for summary judgment.
From the state courts
California appellate court held that maintenance worker for yacht club who was injured while stepping from a dock to a boat (and who was excluded from coverage under the LHWCA by the 1984 Amendments), properly asserted admiralty claims for negligence and Sieracki unseaworthiness against the club; Ranger v. Alamitos Bay Yacht Club, No. B315302, 2025 Cal. App. LEXIS 577 (Cal. App. 2d Dist. Sept. 3, 2025) (Wiley).
Brian Ranger was employed by Alamitos Bay Yacht Club in Long Beach as a maintenance worker. He assisted in painting, cleaning, maintaining, repairing, unloading, and mooring of vessels at the club. He was injured after loading the LATHAM B, a boat owned by the club, into the water when he fell after stepping from the dock to the bow of the boat. He applied for workers’ compensation under the California statute and brought this suit in the Superior Court of Los Angeles County, seeking to recover for negligence and unseaworthiness under the general maritime law. Judge Kim sustained the club’s demurrer, ruling that there was no admiralty jurisdiction and that the state compensation statute provided the exclusive remedy for Ranger. Ranger appealed to the California Court of Appeals, and, writing for the court, Judge Wiley provided an extensive explanation of the 1984 Amendments to the LHWCA, which exclude “individuals employed by a club, camp, recreational operation, restaurant, museum, or retail outlet” if the individuals are subject to coverage under a state workers’ compensation law. As the exclusion ultimately applied to all clubs, whether for profit or nonprofit, Judge Wiley held that Ranger was not covered under the LHWCA, noting that Congress had determined that club employees “are more aptly covered under appropriate state compensation laws” because they lack “a sufficient nexus to maritime navigation and commerce.” Judge Wiley reasoned that employees may not sue their employer in tort under the California statute, and that result made sense in this case because federal law and state law were in accord—both the state and federal legislature have replaced the fault-based tort system with the no-fault alternative of workers’ compensation. Ranger cited the Fifth Circuit’s decision in Green v. Vermillion Corp., permitting a worker at a duck hunting camp, who was excluded from the LHWCA by the 1984 Amendments, to bring maritime claims for negligence and unseaworthiness, but Judge Wiley “profoundly” disagreed with the Fifth Circuit and joined with the contrary result from the Eleventh Circuit in Brockington v. Certified Electric, reasoning that the uniformity cited by Ranger and the Fifth Circuit as justification for preemption of state law was “a one-way street, not a useful method of analysis: it always insists on national uniformity, regardless of context, and it always disfavors state power, which can be sound and richly diverse.” Judge Wiley preferred the uniformity in modern Supreme Court decisions like Batterton, where the “uniformity sought is with policies enacted by democratically elected representatives.” He added that “Green’s and Ranger’s conception of ‘uniformity’ has antique support, but age has rotted some of those old timbers.” Judge Wiley concluded that the California workers’ compensation law was the exclusive remedy, stating: “A core part of the state workers’ compensation bargain is that injured workers get speedy and predictable relief irrespective of fault. In return, workers are barred from suing their employers in tort.” See October 2023 Update.
The California Supreme Court granted Ranger’s petition for review and reversed the decision of the court of appeal. The court of appeal did not consider whether Ranger’s accident fell within the admiralty jurisdiction, and, writing for the California Supreme Court, Justice Evans assumed for this proceeding that the injury satisfied the location and connection tests. Justice Evans began by discussing what federal law applies to Ranger’s accident. As the 1984 Amendments to the LHWCA exclude club workers like Ranger from its coverage, the court of appeal held that club workers are subject to the state workers’ compensation statute and its exclusive remedy provision. Ranger argued that the LHWCA only affected the workers’ compensation remedy and did not deprive him of his right to a tort remedy under the general maritime law. Justice Evans agreed, stating: “The LHWCA by its terms does not narrow admiralty jurisdiction for noncovered employees nor does it purport to articulate what general maritime remedies are or are not available to club workers.” (Citing Perini). Justice Evans disagreed with the court of appeal’s reference to Batterton for the proposition that admiralty courts should look to legislative enactments for policy guidance, reasoning: “The Club does not explain why workers who are excluded from the LHWCA–and who did not receive the benefit of the bargain Congress struck with covered workers—must nonetheless suffer the limitations that are a part of that federal scheme.” Justice Evans then considered whether the California statute itself displaced general maritime remedies and constituted Ranger’s exclusive remedy. She concluded that the exclusive remedy provision in the state statute would conflict with the established maritime claim for negligence, siding with cases such as Green v. Vermillion that held that state exclusive remedy provisions do not preclude a worker’s general maritime claims. Accordingly, Justice Evans concluded “that neither the 1984 Amendments to the LHWCA nor the exclusive-remedy provision of the California Workers’ Compensation Act bars a plaintiff under admiralty jurisdiction from seeking further relief for an injury under general maritime law.” The court remanded the case to decide whether there is admiralty jurisdiction, whether Ranger is entitled to assert an unseaworthiness claim, and whether Ranger, as a repair worker, has the ability to assert a negligence claim against his vessel-owning employer because of the LHWCA. See March 2025 Update.
In the California Court of Appeal, Justice Wiley began with the question of whether there is admiralty jurisdiction over the tort. The club conceded that the locality test was satisfied by Ranger’s fall on a vessel on navigable waters. With respect to the nexus/connection test, Superior Court Judge Kim focused on the noncommercial nature of the boat and the nature of the marina as belonging to a yacht club. Justice Wiley reasoned, however, that the appropriate description of the event was an injury to a person embarking on a boat docked at a marina on navigable waters. The issue was whether an injury to a person boarding a boat docked at a marina had the potential to disrupt maritime commerce (without looking at the actual effect on maritime commerce or the particular facts of this case). Justice Wiley found such potential, noting that the inability to safely disembark from the vessel could inhibit many activities essential to commercial shipping, including loading, resupply, and the coming and going of crew, contractors, and passengers. And an injury could require rescue efforts that would hinder commercial activities at the dock. Judge Kim in the superior court had not reached the issue whether the incident had a substantial relationship to traditional maritime activity, and Justice Wiley ruled that the test was satisfied because the Supreme Court in Sisson held that “‘storage and maintenance of a vessel at a marina on navigable waters’ is ‘a common, if not indispensable, maritime activity.’” Justice Wiley then addressed the argument that Ranger could not bring an unseaworthiness claim because he was not a Jones Act seaman. Justice Wiley noted that the courts have disagreed whether the 1972 Amendments to the LHWCA overruled the Supreme Court’s Sieracki decision. Disagreeing with the Ninth Circuit in Normile (holding that Sieracki was overruled in its entirety) and agreeing with the Fifth Circuit in Aparicio (that workers not covered by the LHWCA retain their Sieracki unseaworthiness claim), Justice Wiley held that Ranger was entitled to bring an unseaworthiness claim. Finally, Justice Wiley addressed the club’s argument that Ranger could not bring a claim against the club for negligence in the capacity as vessel owner because Section 5(b) of the LHWCA, as amended in 1984, prohibits negligence claims for workers engaged in ship repair. Justice Wiley did not have to decide if Ranger was engaged in ship repair because the LHWCA excludes employees of a club in Section 2(3)(B). Accordingly, Ranger was allowed to maintain a maritime negligence remedy against the club. Thanks to Michael F. Sturley, Fannie Coplin Regents Chair at the University of Texas School of Law, for bringing this decision to our attention.
And on the maritime front . . .
From the federal appellate courts
First Circuit remanded case brought by local businesses against the Town of Bar Harbor Maine, challenging the constitutionality of an Ordinance limiting the number of passengers who many disembark from cruise ships (based on the Dormant Commerce Clause), requesting evaluation whether the burdens on interstate commerce are “clearly excessive” in relation to the “putative local benefits;” Association to Preserve and Protect Local Livelihoods v. Sidman, Nos. 24-1317, 24-1318, 25-1385, 2025 U.S. App. LEXIS 20276 (1st Cir. Aug. 11, 2025) (Barron).
“The Town of Bar Harbor, Maine is a famously scenic coastal community of roughly 5,500 residents. It sits at the edge of Frenchman Bay and provides easy access to Acadia National Park.” However, this scenic community has become a popular port of call for large cruise ships (carrying as many as 5,000 passengers), and the Town enacted an ordinance that capped the total number of people who many disembark each day from a cruise ship at 1,000. Local business groups who benefit by providing goods and services to the passengers brought this suit in federal court in Maine, asserting that the Ordinance violates the Dormant Commerce Clause and the Supremacy Clause of the United States Constitution and unreasonably deprives the businesses of their property interests in Coast Guard approvals in violation of the Due Process Clause. The local ship pilots joined the litigation, arguing that the Ordinance was preempted under the Maine State Pilotage Act. Judge Walker held a three-day trial and denied the request to enjoin the Ordinance, finding in favor of the Town on all but one of the claims. Before arriving at the “centerpiece” of the appeal, the First Circuit rejected the arguments based on state pilotage laws and the due process argument that the Ordinance lacked a rational relationship to the purported goal of lessening sidewalk congestion (even assuming that that the Ordinance was passed based on a distaste for the passengers on larger cruise ships compared to passengers on smaller ships who are perceived as “more well-to-do”). The plaintiffs argued that the Ordinance violated the modern Dormant Commerce Clause precedents that constrain local measures that discriminate against interstate commerce or that impose undue burdens on interstate commerce. The First Circuit agreed with Judge Walker that the Ordinance did not discriminate against local inns and hotels, concluding that even if the cruise lines and hotels competed for the same tourists’ commerce, these businesses were not similarly situated. However, the First Circuit remanded the case to Judge Walker to evaluate whether the burdens on interstate commerce are “clearly excessive” in relation to the “putative local benefits.”
Second Circuit disagreed with Judge who dismissed limitation complaint for lack of subject matter jurisdiction (as untimely), but the appellate court dismissed the case under Rule 12(b)(6) for failure to state a claim because the letter of representation for the injury claim resulting from the negligence of the vessel owner triggered the six-month period in which to file the limitation action; In re Seganti, No. 24-1519, 2025 U.S. App. LEXIS 21851 (2d Cir Aug. 26, 2025) (Menashi).
Nancy Skolnik was a passenger on a recreational vessel owned by Steven Aletkin that was involved in a collision on May 29, 2022 with a recreational vessel owned by Ed Seganti in navigable waters in the vicinity of Goose Creek, near Bellmore Channel, Nassau County, New York. Skolnik filed a suit against Seganti in the Supreme Court of Nassau County, New York on August 7, 2023, and Seganti filed this limitation action on November 1, 2023 in federal court in New York (within six months of the suit in state court but more than a year after the accident), seeking to limit liability to the value of the vessel, $168,775.08. After reviewing the complaint, Judge Choudhury ordered Seganti to file an affidavit addressing whether the complaint was timely filed, and Seganti submitted the letter of representation from Skolnik’s counsel, dated September 22, 2022, advising of his representation of Skolnik for the accident that was caused through Seganti’s negligence. Skolnik’s counsel requested that the letter be submitted to Seganti’s insurance carrier and that Seganti secure video and camera footage from May 29, 2022: “Please be advised that this office has been retained by the above-named to pursue a claim for personal injuries arising out of and as a result of an accident which occurred on the above date through your negligence. Kindly refer this letter immediately to your insurance carrier and/or attorney for prompt consideration and further attention. Be advised, we demand that you secure and save all video and still photography camera footage for the entire date of May 29, 2022. Same will be demanded during litigation. Failure to save the video footage will force us to address any issues concerning same with the Court.” Skolnik submitted a letter to the court that the representation letter was sufficient notice to trigger the running of the six-month period to file the limitation action, and Seganti responded that Skolnik was not a party to the limitation action and had no standing to submit the letter. Seganti argued that the representation letter did not place him on notice because it did not explicitly identify the nature of the injury alleged or state that a claim could exceed the value of the vessel, but Judge Choudhury was not persuaded, reasoning that the letter was similar to letters that were deemed sufficient notice by other judges. She therefore held that the limitation action was untimely and that the court lacked subject matter jurisdiction over the action. See June 2024 Update.
Seganti appealed the jurisdictional dismissal to the Second Circuit, and, writing for the appellate court, Judge Menashi joined the Fifth Circuit in Bonvillian Marine (see January 2022 Update) and the Ninth Circuit in Martz (see June 2022 Update) in concluding that the “mundane statute-of-limitations language” in the Limitation Act “does not limit the subject matter jurisdiction of the federal courts.” Instead, as the six-month time bar did “nothing special, beyond setting an exception-free deadline,” Judge Menashi reasoned that the provision is “an ordinary non-jurisdictional claim-processing rule.” However, the rule was still mandatory, and Judge Menashi considered whether the letter triggered the running of the six-month period to file the limitation action. Seganti argued that the letter did not notify him that the claims would exceed the value of the boat. Judge Menashi disagreed, stating: “It is “of no significance’ that Skolnik could not identify the specific amount of damages in September 2022 because ‘the whole tenor of the letter . . . is to the effect that [Seganti] will be held responsible for the loss.’” Although Seganti contended that the letter did not advise of the nature of the injuries, Judge Menashi answered that the letter “informed Seganti that Skolnik had suffered ‘personal injuries’ in the collision,” and: “We require no more ‘exacting specificity’ than that.” Finally, Judge Menashi addressed the effect of the holding on the merits that the limitation action was untimely but that the dismissal was not for lack of subject matter jurisdiction. Dismissals for lack of jurisdiction are without prejudice, but dismissals for failure to state a claim are generally with prejudice. Therefore, the Second Circuit modified the dismissal to dismiss the action under Rule 12(b)(6) with prejudice.
American Bureau of Shipping was acting under the direction of the Coast Guard in inspection and classification of vessel that sank in a storm (for purposes of removal under the Federal Officer Removal Statute) in connection with a suit against ABS seeking recovery for injuries and deaths; Krell v. American Bureau of Shipping, No. 24-20438, 2025 U.S. App. LEXIS 22374 (5th Cir. Aug. 29, 2025) (per curiam).
Shortly after departing from Port Fourchon, Louisiana, the SEACOR POWER capsized and sank during a severe thunderstorm, resulting in several deaths and injuries. The injured seamen and representatives of the deceased seamen brought suit in state court in Harris County, Texas against American Bureau of Shipping (ABS) and related companies, asserting that ABS was negligent in its inspection and classification of the vessel. ABS removed the case to Texas federal court based on the Federal Officer Removal Statute, asserting that the Coast Guard has delegated authority for it to perform inspections on United States flagged vessels to assess their compliance with federal law and regulations and international conventions. The plaintiffs moved to remand, arguing that the Coast Guard did not exercise the requisite amount of control to demonstrate that ABS acted pursuant to a federal officer’s direction. Judge Hittner agreed with the plaintiffs and remanded the case to state court, denying the motion for reconsideration filed by ABS. ABS appealed to the Fifth Circuit, arguing that it was acting under the direction of the Coast Guard when it inspected the vessel. The Fifth Circuit reasoned that ABS helps the Coast perform a job that the Coast Guard would otherwise have had to perform. The court noted that there are “numerous statutes and regulations that convey and express delegation of authority to ABS to act on behalf of the USCG” and that the Coast Guard has adopted a rule deeming that delegated functions performed by ABS (and certificates issued by ABS) will be accepted by the Coast Guard. As the ABS was acting under the direction of the Coast Guard for purposes of the Federal Officer Removal Statute, the Fifth Circuit reversed the order of remand, allowing Judge Hittner to address the other arguments presented by the plaintiffs.
State sovereign immunity did not bar the owner of a tug from proceeding with its limitation action in connection the allision of the barge it was towing with a bridge in which the sole claimant in the limitation action was the State, which owned the bridge; In re Jackson Creek Marine, LLC, No. 24-1788, 2025 U.S. App. LEXIS 22699 (4th Cir. Sept. 3, 2025) (Richardson).
This case arises from the allision of a barge pushed by the tug JACQUELINE A and the fendering system of Maryland’s Nanticoke River Memorial Bridge. The owner of the tug, Jackson Creek Marine, brought this action in federal court in Virginia, seeking to limit its liability to the value of the tug. The State of Maryland brought the sole claim in the limitation action, seeking to recover the estimated damage to the bridge, $3,140,343.98. The State then moved to dismiss the limitation action on the ground that the State’s sovereign immunity prohibited the court from applying the Limitation Act against the State. Judge Haynes rejected the State’s argument, reasoning that Jackson Creek was not seeking damages from Maryland and only sought to determine its liability and divide the limitation fund among claimants. Maryland filed an interlocutory appeal, and the United States intervened in the appeal to support Jackson Creek. Writing for the Fourth Circuit, Judge Richardson stated that sovereign immunity “is easy to grasp and hard to apply;” however, he did not have much trouble concluding that the limitation action did not implicate Maryland’s sovereign immunity. He reasoned that Maryland chose to file a claim in the limitation action and to contest the cap on liability imposed by the federal statute. He explained: “And if Maryland fails and Jackson Creek’s limitation action succeeds, no money will be drained from Maryland’s coffers. Its recovery will simply be less than it would have been otherwise.” The only question was whether the limitation action subjected Maryland to coercive judicial process as a claimant, and Judge Richardson answered that Maryland was embroiled in the suit of its own accord. Therefore, the Fourth Circuit agreed with Judge Haynes that the limitation action may proceed.
Contract to provide operators to work on offshore platform was not maritime, even though the work performed included incidental work related to vessels and the worker was injured during a transfer from a vessel; In re Offshore Oil Services, Inc., No. 24-30674, 2025 U.S. App. LEXIS 22908 (5th Cir. Sept. 4, 2025) (Rodriguez).
Tyrone Felix, an employee of Island Operating, was injured during a personnel basket transfer from the deck of the M/V ANNA M to a platform that was owned and operated by Fieldwood Energy. Offshore Oil Services, owner of the ANNA M, brought this limitation action in federal court in Louisiana, and it filed a third-party action against Inland Operating seeking pass-through indemnity and insurance coverage from Inland Operating pursuant to the terms of a Master Services Contract between Inland Operating and Fieldwood. Inland Operating moved for summary judgment on the indemnity/insurance claim, arguing that the indemnity/insurance obligations were voided by the Louisiana Oilfield Indemnity Act. Under the Contract, Inland Operating supplied production operators to man Fieldwood’s platforms producing oil and gas on the outer Continental Shelf off the Louisiana coast. A Fieldwood representative described the roles and responsibilities of the operators as including compliance testing, well testing, taking shakeouts, checking chemical rates, starting up compressors, loading compressors, and bringing wells online. In order to determine whether the indemnity/insurance provisions were valid, Judge Morgan had to decide what law to apply to the Contract. Pursuant to the Fifth Circuit’s en banc Doiron decision, the critical issue was whether the Contract provided, or the parties expected, that a vessel would play a substantial role in the completion of the contract. Judge Morgan noted that the work order did not reference a vessel, and the Master Services Contract only mentioned use of a vessel with respect to transportation, including loading or unloading equipment. The court in Doiron stated that transportation was not to be considered in determining whether the contract contemplated substantial use of a vessel, and Judge Morgan noted that cases extended that analysis to the loading and unloading of vessels. Although Offshore Oil cited testimony from a Fieldwood corporate representative that work from vessels was not typically done but was part of the agreement, Judge Morgan stated that the expectations of the parties require “a shared expectation” that a vessel will play a substantial role, and Island Operating did not share that expectation. Consequently, Judge Morgan concluded that Louisiana law was applicable. She then addressed whether the LOIA applied and concluded that it did because the work pertained to a well that was related to exploration, development, production, or transportation of oil or gas. Thus, the indemnity and insurance requirements were invalid under the LOIA. Judge Morgan did note the Meloy exception that would allow Offshore Oil to recover its attorney fees and costs from Inland Operating in the event Offshore Oil were found not to be at fault, and she denied the motion for summary judgment with respect to defense costs. See April 2023 Update.
Offshore Oil moved for reconsideration of the granting of summary judgment in favor of Island Operating, arguing that the intervening decision from the Fifth Circuit in Earnest v. Palfinger (see February 2024 Update) reflected that maritime law, not Louisiana law and the LOIA, should apply to the Master Services Contract between Inland Operating and Fieldwood. Earnest held that a contract to repair lifeboats on an offshore platform was maritime, noting that courts should consider what is “classically maritime” in determining the role of a vessel in the completion of the contract (under the Fifth Circuit’s Doiron test for determining what is a maritime contract). Judge Papillion did not consider that the panel decision in Earnest was a significant departure from the en banc decision in Dorion. He noted that the portion of Doiron on which Judge Morgan relied (marine transportation to a worksite is maritime, but it is not considered in evaluating whether a contract for other services is maritime) was not involved in Earnest. Thus, there was no reason to reconsider Judge Morgan’s application of Doiron, and Judge Papillion denied the motion for reconsideration. See November 2024 Update.
Judge Papillion ultimately entered a judgment in favor of Inland Operating, and Offshore Oil appealed to the Fifth Circuit. As in the district court, the determining issue was whether the contract between Fieldwood and Inland Operating (under which Offshore Oil sought pass-through indemnity from Inland Operating) was a maritime contract. Under the test enunciated in the Fifth Circuit’s en banc decision in Doiron, the issue presented was whether the contract provided for, or the parties expected, that a vessel would play a substantial role in the completion of the contract. Writing for the Fifth Circuit, Judge Rodriguez of the United States District Court for the Southern District of Texas, sitting by designation, noted that the contract did not provide that vessels would play a substantial role in the completion of the work. The responsibilities of the operators provided by Inland Operating to Fieldwood involved work on the platform and not vessels or traditional maritime work. The only maritime work referenced in the contract was the responsibility of Fieldwood to transport the workers to the platform, and Doiron did not take into account the use of vessels to transport workers. Offshore Oil reiterated the argument it made in the district court that under the Fifth Circuit’s Earnest case the reliance of Judges Morgan and Papillion on the location of the work failed to give sufficient consideration to the fact that a third of Felix’s work involved loading and unloading equipment and water from a vessel to the platform. Judge Rodriguez was not persuaded. In the first place, the actual use of vessels is only relevant when the contractual terms and expectations of the parties are unclear. The fact that Felix performed classically maritime work did not alter the language of the contract, which did not mention maritime work. The evidence demonstrated that any use of vessels was incidental to the non-maritime work contemplated by the contract. Judge Rodriguez distinguished the holding in Earnest that a contract to inspect and repair lifeboats on a platform was a maritime contract. Although work on the lifeboats may have occurred on the platform, the work involved lifeboats, giving the vessels a substantial role. The incidental work related to vessels did not convert the contract between Fieldwood and Inland Operating for operators on an offshore platform into a maritime contract. Therefore, the Fifth Circuit affirmed the decision that Louisiana law applied to the contract so that the indemnity provision was unenforceable. Thanks to Matthew H. Ammerman of Houston, Texas for bringing this decision to our attention.
Fifth Circuit agreed that the obligation of a platform owner to provide a vessel for transportation and a living quarters did not convert a contract to provide repairs on the platform into a maritime contract, and Louisiana state law (with its anti-indemnity act) applied to void the indemnity obligation for a worker injured while transferring to the vessel; Genesis Energy, L.P. v. Danos, L.L.C., No. 24-20357, 2025 U.S. App. LEXIS 23778 (5th Cir. Sept. 15, 2025) (Elrod).
Maximo Sequera was injured when he was thrown out of a personnel basket while transferring from an offshore platform to a vessel on the outer Continental Shelf in the Gulf of America off the coast of Louisiana. He brought suit in state court in Harris County, Texas against his employer, Danos, the platform owner/operator, Genesis Energy, and the vessel operator, L&M Botruc Rental, asserting claims as a Jones Act seaman. Danos removed the case to federal court based on the jurisdiction of the Outer Continental Shelf Lands Act, arguing that removal was proper because Sequera was not a Jones Act seaman. Genesis Energy moved to strike Sequera’s jury demand, arguing that the petition filed in state court did not assert claims under the OCSLA, and the maritime claims that Sequera brought did not afford the right to a jury trial. Judge Eskridge agreed that Sequera did not plead claims under the OCSLA “by name;” however, the case was removed to federal court, with the consent of Genesis Energy, under the OCSLA, and “all Defendants understood OCSLA to have been pleaded when they consented to removal on that basis.” Moreover, the well-pleaded complaint rule does not apply in removal of OCSLA cases. The pleadings and the record made it clear that the case involved transfer from a production platform on the OCS. Accordingly, Sequera stated a claim under the OCSLA, and Sequera was entitled to a jury trial. See April 2024 Update.
Genesis Energy sought defense and indemnity from Danos in connection with Sequera’s suit pursuant to the terms of the contract by which Danos agreed to provide repair to the platform. The repair work required a vessel to house the workers and the equipment and to transport workers and equipment to the platform. That vessel was supplied by L&M Botruc, and Sequera was injured while transferring from the platform to the vessel. Whether the indemnity provision in the contract was valid depended on whether the contract was maritime or not, as the indemnity was not valid under the Louisiana Oilfield Indemnity Act. Applying the Doiron test, the dispute centered on whether the contract provided, or the parties expected, that a vessel would play a substantial role in the completion of the repairs. Judge Eskridge noted that the contract set forth the scope, objectives, and requirements of the work that Danos was to perform on the platform, and it referenced the vessel only with respect to housing and transferring the workers to the platform. The parties also understood that the vessel was for initial transportation and mobilization and then to serve as living quarters. Judge Eskridge reasoned that the limited purposes of providing transportation and living quarters did not establish that the vessel played a substantial role in the contract. He did note that it was out of the ordinary that the vessel would maintain a position alongside the platform for the duration of the project, but the activities performed on the vessel were not more substantial than in the ordinary repair project. As the evidence did not clearly establish that the platform repair involved substantial use of a vessel, Judge Eskridge considered the actual work performed under the contract. The crew ate and slept on the vessel, and Danos did not charge for the time on the vessel except when the workers could not work because of weather or travel. Equipment was transferred back and forth from the vessel and stored on the vessel for some of the time. However, no fabrication or use of equipment occurred on the vessel. Judge Eskridge reasoned that a vessel does not play a substantial role if it is used only for transportation or for loading and unloading of items, which are not considered in determining whether the contract is maritime. The vessel may have been indispensable to work on a platform in the middle of the Gulf of America, but there was no vessel-based work. Thus, Judge Eskridge concluded that the contract was not maritime and that the indemnity provision was unenforceable under Louisiana law. See May 2024 Update.
Judge Eskridge dismissed Genesis Energy’s claims against Danos with prejudice, and Genesis Energy appealed to the Fifth Circuit. Writing for the Fifth Circuit, Chief Judge Elrod reviewed the three contracts relevant to the repair work on the platform. There was a Master Services Agreement that established general terms for future jobs like the platform repair. It did not contemplate use of a vessel. There was a Job Plan executed by Genesis Energy and Danos that provided the specifics for the project. It described the objective of the project as making the platform safe for riser de-oil operations and draining the CHOPS pig launcher and receiver. The work included constructing a ladder, replacing grating, barricading handrails, inspecting fire extinguishers, and draining oil from the pig launcher and receiver. The Job Plan noted that the crews would live on the vessel and transfer to the platform daily via a basket. A third document provided for the rental of the vessel to Genesis Marine, including transporting the crew and the provision of meals and lodging. Under Doiron, the question whether a vessel is expected to play a substantial role in the performance of the contract “ignores the need for vessels to transport equipment and crews.” Therefore, Chief Judge Elrod agreed that the contracts did not establish a substantial role for the vessel. She then considered the evidence of the parties’ expectations, explaining that the Fifth Circuit requires that the vessel be expected “to directly aid the completion of the project.” Chief Judge Elrod reasoned that the declarations revealed “an attenuated connection between the Vessel and the repair work because the Vessel only housed equipment, supplies, and tools, all of which was later transferred to the Platform where the crew used them. Unlike decisions in which the court found the contract was maritime, “the Danos crew was not expected to perform any Platform repairs from the Vessel or fabricate equipment on the Vessel.” The expectation that “the Vessel would only house equipment that would later be transferred to the Platform, where it would facilitate repairs,” reflected an “insubstantial” role for the vessel. Chief Judge Elrod also distinguished the Fifth Circuit’s decision in Earnest (see February 2024 Update), involving repair of lifeboats on a platform, on the ground that it involved repair to vessels as opposed to repair to the platform. The parties anticipated that the vessel would perform ancillary work such as housing and transportation, but work was not performed “from” the vessel. Accordingly, the Fifth Circuit agreed that the contract was not maritime and affirmed the decision of Judge Eskridge.
Fifth Circuit affirmed exoneration of tug with respect to the capsizing of the barge it was towing based on the finding that the cause of the loss was the unseaworthiness of the barge; In re LA Carriers, L.L.C., No. 24-30659, 2025 U.S. App. LEXIS 24486 (5th Cir. Sept. 22, 2025) (per curiam).
This litigation arises from the capsizing of the barge, D/B AMBITION, in the Gulf of America while in tow of the tug, M/V KAREN KOBY, owned by LA Carriers. LA Carriers brought this suit in federal court in Louisiana, seeking exoneration/limitation of liability, and Rigid Constructors, owner of the barge, filed a claim for the loss of the barge, salvage costs, and loss of future income. The case was tried by Judge Papillion, who concluded that LA Carriers was entitled to exoneration from liability. Rigid created the AMBITION in 2020 by mounting an e-crane material handler on top of two mated deck barges. A few months later there was corrosion/wasting on a bottom plate, and Rigid welded a steel box over one corroded area, while epoxy was placed over other areas. In 2022, a metal box was welded over a split in the port bow after the barge struck a rock jetty. Prior to June 2022, the barge had been towed without incident by several companies, including in the Gulf of America. LA Carriers already knew from a tow in February 2022, that the barge was not ABS certified, did not have a Plimsoll line on its hull, and would have to be towed “near coastal” with conditions that do not exceed 4-6 feet on a voyage that is not longer than 48 hours. LA Carriers was contacted in June of 2022 to tow the AMBITION in the Gulf of America between the Calcasieu River jetties and the Southwest Pass at the entrance to the Mississippi River and then to Myrtle Grove. As an uninspected barge with no load line, the barge was restricted to transiting within 12 nautical miles of the coast (although the Captain of the KAREN KOBY, Chester Murphy, believed the limit was 25 miles). The tow proceeded more than 12 miles from the coast, but it encountered mild conditions of 2 to 4 feet. Early in the morning of the second day of the tow, the movement slowed, and the crew discovered that the barge was listing. Half an hour later, the barge capsized to port in approximately 50 feet of water, approximately 18 nautical miles from the Louisiana coast. Judge Papillion began his analysis by noting that when a barge sinks in calm water for no immediately ascertainable cause, in the absence of proof of improper handling, the sinking is presumed to be the direct result of its unseaworthiness. He found credible the testimony of an expert in metallurgical engineering and failure analysis who examined the barge after it capsized, performed ultrasonic testing on its hull, and discovered severe metal wastage that included a corrosion hole that was about 25 feet long. Judge Papillion concluded that the cause of the failure of the AMBITION was its unseaworthiness due to corrosion and wastage and not because of the pounding effect of rough seas. Thus, he found that any violation of a rule or statute by taking the barge more than 12 miles offshore was not the cause of the capsizing. Judge Papillion noted that if unseaworthiness of the towed vessel is apparent or disclosed, the tug has a duty to take reasonable steps to determine the condition and take action to save the tow. However, he found that the condition was latent and that LA Carriers did not have a legal duty to conduct the type of inspection that would have revealed the latent defects. As the cause of the loss was the unseaworthiness of the barge, Judge Papillion exonerated LA Carriers. See November 2024 Update.
Rigid Constructors challenged the findings that the KAREN KOBY was seaworthy and had a competent crew; that the AMBITION sank due to corrosion to its hull and preexisting defects; and that the voyage outside the 12-mile offshore limit and allision with a navigational pole or channel marker did not contribute to the loss of the AMBITION. The Fifth Circuit found no clear error in Judge Papillion’s determination that the AMBITION’s structural defects made it unseaworthy and that the unseaworthiness was the sole cause of the sinking, crediting the testimony of LA Carrier’s metallurgical expert, Robert Bartlett rather than the testimony of Rigid Constructors’ expert. Therefore, the Fifth Circuit did not have to address Rigid Constructors’ argument that Judge Papillion misapplied admiralty law by improperly allocating the burdens of proof and presumptions of liability.
From the federal district courts
Estate of deceased captain of tug was held liable as a responsible party under the Oil Pollution Act of 1990 for the government’s clean-up costs when the towed vessel ran aground; United States v. Ships International, Inc., No. 2:23-cv-1677, 2025 U.S. Dist. LEXIS 144092 (W.D. Wash. July 28, 2025) (Zilly).
Christian Lint was the captain of the tug Hunter, which was towing the fishing vessel AMERICAN CHALLENGER off the California coast. The tow broke free and ran aground, spilling oil from the wreck of the AMERICAN CHALLENGER. The United States brought this suit in federal court in Washington against the owner and operator of the tug and tow as well as against the Estate of Christian Lint, who died after the incident, seeking to recover $14,440,310 in response costs. The United States argued that Lint was a “responsible party” under the Oil Pollution Act of 1990 and was jointly and severally liable for the clean-up costs. The Estate argued that Captain Lint did not own or charter the tug or fishing vessel and was not required to file proof of financial responsibility. The United States responded that Lint was solely in control of the tug and towed vessel and was, therefore, an “operator” within the meaning of OPA. Reasoning that an operator includes persons who “manage, direct, or conduct operations specifically related to pollution,” Judge Zilly held that Captain Lint was an operator and accordingly was strictly liable under OPA as a responsible party. Therefore, Judge Zilly held that the Estate was jointly and severally liable for the full amount of the government’s response costs of $14,440,310.
Beneficiaries of passengers of Jon boat whose bodies were not found after the Jon boat was located overturned in the Mississippi River sufficiently stated a negligence claim against the owner of the only tug operating in the area, but no civil action was available for the alleged breach of state criminal statutes penalizing failure to stop and render aid and failure to report a collision; Hughes v. SCF Waxler Marine LLC, No. 3:23-cv-1713, 2025 U.S. Dist. LEXIS 148561 (W.D La. Aug. 1, 2025) (Edwards).
On December 3, 2020, 21-year-old Zeb Andrew Hughes and 16-year-old Jameson Med Gunner Palmer launched a Jon boat from Letourneau Boat Ramp in Warren County, Mississippi, intending to scout for duck hunting holes around Davis Island on the Mississippi River. They did not return home, and searchers found the overturned Jon boat and equipment down river. Hughes and Palmer were never found. During the investigation, a shoreside witness stated that he saw a tugboat with empty barges in tow heading north across from the Letourneau Boat Ramp around the time the decedents launched their boat and that the Jon boat crossed the river above the tug and barges. A deckhand and mate on the only tug in the area, the JENNIE K, denied any collision with the Jon boat but advised that they saw an overturned camouflage skiff and personal effects on the port side of the tug. The investigation by the Warren County Sheriff concluded that the Jon boat was struck by a north-bound barge, that the accident was not survivable, and that the decedents drowned in the river. Beneficiaries of the decedents brought this suit against the JENNIE K and its owner in federal court in Louisiana based on negligence, negligence per se, and failure to render aid and report the accident under Louisiana statutes. The defendants moved to dismiss the complaint, arguing that the complaint failed to sufficiently plead that the decedents died as a result of a collision with any vessel or sustained pain and suffering, that negligence per se is not a stand-alone cause of action, and that the Louisiana statutes are criminal statutes that do not create a private, civil cause of action. Judge Edwards believed that the allegations were sufficient to support claims for negligence and for survival damages for the decedents. Judge Edwards cited the testimony that the Jon boat was observed cross the river on a path above a tug, that the JENNY K was the only tug in the area, that the crew of the tug observed the overturned skiff and personal items, and that the Jon boat exhibited damage consistent with being involved in a collision. With respect to the claim that the decedents experienced a “slow and conscious death by drowning,” Judge Edwards cited the conclusion of the sheriff that the decedents died in the river. Cases cited by the defendants that such evidence is insufficient to support a claim for pain and suffering were distinguished because the cited cases involved the trial stage of litigation, and the current challenge was in a motion to dismiss. Judge Edwards agreed, however, with the defendants, that the criminal statutes involving failure to render aid or report the incident did not authorize civil remedies and that the claim for negligence per se is not recognized as a separate cause of action under maritime law or Louisiana law. Therefore, he dismissed those counts.
Judge declined request for attorney fees by charterer of a vessel that was wrongfully arrested as the request was made three months after the arrest was vacated and the charterer had not filed a counterclaim for wrongful arrest; Geoserve Energy Transport DMCC v. 07 VEGA S, No. 3:24-cv-2148, 2025 U.S. Dist. LEXIS 149603 (S.D. Cal. Aug. 4, 2025) (Huie).
Infinity Shipping contacted Geoserve Energy to provide bunkers to the M/V 07 VEGA S. The order originated with the time charterer of the vessel (Ocean7 Projects), through a broker, who placed the order with a company (TSL Shipping) that subcontracted with Infinity Shipping, which subcontracted with Geoserve. Geoserve contracted for the supply of the bunkers, and Ocean7 Projects paid TSL, which arranged for payment of $188,254 for the fuel. Infinity Shipping later advised Geoserve that the payment should be applied for the bunkers supplied to a different vessel, the T RIGEL, to which Geoserve had provided bunkers. Infinity Shipping ultimately paid $20,000 for the bunkers for the 07 VEGA S but did not pay the remainder of the $188,254. Geoserve brought this suit in federal court in California against the vessel, and the vessel was arrested. Ocean7 Projects appeared in the proceeding and advised: “We are stunned to see Infinity instructing these funds to be allocated to another vessel than the 07 Vega S . . . . We have no knowledge or involvement with the T Rigel, and there is absolutely no connection with the 07 Vega S.” At a post-arrest hearing, Geoserve, Infinity Shipping, and Ocean7 Projects agreed to the posting of security and for the release of the vessel, and Judge Huie released the vessel. Ocean7 Projects then filed a motion to dismiss the action, and Geoserve did not file a response. Judge Huie dismissed the complaint, without leave to amend based on the failure to file a response and also on the merits, concluding that the complaint did not allege that Infinity Shipping was an agent for Ocean7 Projects and that the payment extinguished the lien. Geoserve moved to set aside the dismissal, and Judge Huie reiterated his prior decision on the merits. He again concluded that there was no evidence that Infinity Shipping was acting as an agent for Ocean7 Projects and that the lien was extinguished when Ocean7 Projects made the payment to TSL (a downstream party who seeks to reallocate the payment does not thereby resurrect the lien). Finally, Judge Huie noted that once the arrest was vacated, there was no longer a basis for maintaining an in rem action against the vessel. Accordingly, he declined to reconsider the dismissal of the complaint. See May 2025 Update.
Ocean7 Projects did not file a counterclaim seeking damages for wrongful arrest of the vessel. It did file an ex parte application for countersecurity, stating that it would file a motion, but no such motion was filed. Judge Huie denied the application as the complaint had been dismissed and the arrest had been vacated. Ocean7 Projects then filed a motion seeking an award of attorney fees based on wrongful arrest of the vessel, and Judge Huie denied the motion for failure to comply with the meet-and-confer requirements and as being untimely under Rule 54(d)(2). Ocean7 Projects moved for reconsideration, and Judge Huie granted reconsideration with respect to compliance with the meet-and-confer requirements. As to the timeliness of the motion for damages, filed three months after entry of judgment, Ocean7 Projects argued that it was not seeking attorney fees subject to Rule 54 (requiring the filing within 14 days of the judgment). Instead, Ocean7 Projects sought attorney fees as an element of damages for wrongful arrest of the vessel that fall within the exception to Rule 54, where “the substantive law requires those fees to be proved at trial as an element of damages.” Ocean7 Projects cited the decision of the Supreme Court in Vaughan v. Atkinson, permitting an award of attorney fees as an element of damages in maintenance and cure cases, but Judge Huie noted that the seaman in that case brought an admiralty suit seeking to recover such damages and did not first assert the claim in a post-judgment motion. Ocean7 Projects was unable to cite any statute, rule, or case that specifically addressed the timeliness of a motion to recover damages for wrongful arrest of a vessel. It argued that “the deadline to pursue damages and costs arising from a wrongful arrest” was “triggered from the date of a final unappealable order establishing the arrest is invalid.” However, Judge Huie reasoned that the argument was contrary to the policy behind Rule 54(d)(2)(A): “to assure that the opposing party is informed of the claim before the time for appeal has elapsed.” Judge Huie added: “Ocean7’s proposed rule would allow a defendant not to alert the plaintiff, to wait for the plaintiff’s time to appeal to expire, and finally to file a motion seeking previously undisclosed damages—here, in excess of seven times the amount claimed by the plaintiff in the underlying lawsuit. In those circumstances where the plaintiff does choose to appeal a final judgment, Ocean7’s proposed rule would seem to incentivize inefficient and time-consuming successive appeals.” Believing he would benefit from additional briefing, Judge Huie requested the parties to file briefs on the issue of whether the motion for fees was timely and should be heard on the merits. See August 2025 Update.
Ocean7 argued that its motion for wrongful arrest is a motion for sanctions that is governed by the equitable doctrine of laches. If he were to apply laches, however, Judge Huie would have to choose an analogous statute whose limitation period is adopted for the laches analysis. He reasoned that the most appropriate statute for a post-judgment motion would be the 28-day deadline in Rule 59(e). Thus, Ocean7’s motion, filed three months after entry of the judgment, would be presumptively unreasonable. Applying equitable principles, Judge Huie noted that Ocean7 had argued successfully that Geoserve should be strictly held to a standard of timeliness and that the court should resist efforts to delay resolution of the case. However, Ocean7 now moved for damages after obtaining favorable rulings on its timeliness arguments. Moreover, Judge Huie did not find Ocean7’s proffered reasons for its delay to be persuasive, and he added that the motion would result in unfair prejudice to Geoserve. He concluded: “Applying principles of equity, the Court concludes that Ocean7’s post-judgment motion for wrongful arrest is untimely. The motion would be untimely if the deadlines provided in Rules 54(d)(2) or 59(e) were applied, or if such deadlines were borrowed for application by analogy.” Ocean7 filed its notice of appeal to the Ninth Circuit on September 3, 2025.
Cruise line garnishees in suit brought by passenger against operators of ferry in Italy (on which the passenger was injured during an excursion to the Isle of Capri), had standing to challenge the garnishments, but the Judge declined to vacate the attachments for funds held in a London bank for payment to the operators in Italy because the cruise lines had constructive possession of the funds in Florida; Buesking v. Aloschi Bros. SRL, No. 1:25-cv-20454, 2025 U.S. Dist. LEXIS 150189 (S.D. Fla. Aug. 5, 2025) (Altonaga).
Daryel Buesking, a passenger on the ENCHANTED PRINCESS, was injured during an excursion from Naples, Italy to the island of Capri when he tripped over an obstacle on the ferry (believed to be a bulkhead door threshold). Asserting that the ferry was overcrowded with passengers who were instructed to board at the same time in a chaotic process, Buesking brought this suit in federal court in California against the cruise line, the excursion operator, and the on-site tour operator. His complaint alleged three causes of action against the cruise line--general negligence, negligent failure to warn, and agency liability for the negligence of the excursion operator. The cruise line moved to dismiss the allegations against it, first arguing that the Passage Ticket Contract contained a provision disclaiming liability for shore excursions. The cruise line argued that the Contract was incorporated into the complaint because the complaint alleged that the action was brought in federal court in accordance with the forum-selection clause of the Contract. Judge Almadani disagreed, reasoning that the contract was not required for the passenger to state a claim for negligence for breach of a duty owed to a passenger and noting that it was the cruise line which submitted the terms of the Contract as a defense. Judge Almadani added that the Contract was not authenticated. Accordingly, she declined to dismiss the complaint based on the shore-excursion liability disclaimer in the Contract. The cruise line also moved to dismiss the allegations of general negligence and failure to warn on the ground that the complaint failed to allege facts establishing that the cruise line should have known that the ferry would be unreasonably crowded or that there was an unreasonably dangerous unmarked threshold on the ferry. Judge Almadani agreed that the cruise line’s knowledge of the number of passengers on the excursion from its sale of tickets did not establish knowledge of the cruise line of overcrowding as there was no notice of the capacity of the ferry or the number of passengers from the general public who would be on the ferry. Judge Almadani also did not find notice from the initial approval process for the excursion and annual inspections as the facts did not correspond to the particular ferry or the date and conditions of this particular trip. She explained: “The incident alleged here involved a variable condition at an excursion location. This distinction matters because the former context requires more factual content than the latter to support a reasonable inference of actual or constructive notice.” Similarly, Judge Almadani found insufficient notice of the risk of the unmarked threshold, reasoning that the passenger would need to allege facts to support the inference that the cruise line undertook “the duty to structurally inspect for every conceivable hazard on every conceivable means of conveyance that the tour operator might have used to transport tour participants to the island of Capri.” Therefore, Judge Almadani dismissed the counts involving negligence and failure to warn, but allowed Buesking leave to amend. See April 2025 Update.
Buesking added allegations related to the cruise line’s notice of the overcrowding conditions, and the cruise line moved to dismiss the amended complaint, arguing that Buesking still failed to plausibly allege that the cruise line had notice of the overcrowding. Although Buesking alleged that the initial approval process of the tour and yearly inspections should have discovered the crowded conditions, Judge Almadani found too many logical gaps in the theory to support an inference that the same or similar overcrowding that caused the injury in this case existed during prior inspections. Buesking also argued that because the cruise line was in privity with the tour, it should have known of the exact number of planned passengers on the ferry; however, Judge Almadani responded that the tour operator was a purchaser of tickets and had no reason to know the total number of passengers on the ferry. Buesking argued that the cruise line’s website advice to passengers that the boarding area in Capri could be busy and that it would vary the tour times to avoid overcrowding reflected notice to the cruise line that the ferry would be overcrowded. However, Buesking was injured while aboard the ferry in Naples, not at the boarding area in Capri. Judge Almadani reasoned that knowledge that Capri is a popular and crowded ferry destination does not show that the cruise line knew that the ferry to Capri would be overcrowded. Similarly, customer reviews complaining of the congested conditions on Capri did not give notice of the conditions on the ferry to the island. Finally, Buesking alleged that the tour operator and excursion operator were agents of the cruise line so that their negligence would be imputed to the cruise line. The problem with that theory was that Buesking did not prove notice on the part of the agents. Therefore, there was no negligence to impute to the cruise line. Accordingly, Judge Almadani again dismissed the complaint. The dismissal was with prejudice except that Judge Almadani allowed Buesking an opportunity to correct the deficiency with respect to the agency claim. Buesking filed a notice appeal from the dismissal on June 5, 2025. See August 2025 Update.
Meanwhile, Buesking brought suit in federal court in Florida against the Italian operators of the ferry, SNAV S.P.A. and Aloschi Bros. SRL, and sought to garnish funds owed to the defendants by Carnival, Royal Caribbean, and Celebrity pursuant to Supplemental Rule B. The cruise line garnishees moved to vacate the garnishments, arguing that the garnished property is located outside the federal court in Florida and that the proper forum for the suit is either Italy or California. Buesking responded that the cruise lines did not have standing to invoke Supplemental Rule E to challenge the garnishments because they do not have an interest in the garnished funds, which belong to Aloschi Bros., because the funds have not yet been attached, and because the cruise lines have not yet filed answers or responses to discovery requests on the amount of property held. Chief Judge Altonaga disagreed, reasoning that the garnishments were effective upon service and that the cruise lines could invoke Rule E as the owner of the garnished funds (a party need only claim an interest in the attached property, and the cruise lines held and controlled the funds). Chief Judge Altonaga then addressed whether the requirements of Rule B were satisfied in this case. The cruise lines argued that the funds are not physically located in Florida and that they are in bank accounts in the United Kingdom awaiting wire transfer to Aloschi in Italy. Buesking argued that the cruise lines had constructive possession of the funds in the Florida district. Buesking cited Florida law that electronic funds are located where they are constructively possessed and that constructive possession of intangible property is sufficient to give the court jurisdiction in the domicile of the owner of the property. Chief Judge Altonaga distinguished cases involving banks with funds located outside the state because constructive possession is not at issue with banks. Chief Judge Altonaga also rejected application of the Second Circuit decision in Allied Maritime, holding that funds held by a garnishee bank in its Paris branch were located only in Paris, despite the bank’s New York branches, as that decision involved New York law and involved the distinguishable fact that the garnishee was a bank. In contrast, the garnishees in the present case are the nominal owners of the funds in the accounts and are the entities with control over (constructive possession) of the funds. Therefore, Chief Judge Altonaga held that Buesking had established that the funds were in the Florida district for purposes of Rule B. Finally, the cruise lines asserted that under principles of equitable vacatur, either Italy or California would be a more appropriate forum. Chief Judge Altonaga did not believe that the cruise lines gave convincing reasons why Buesking’s choice of litigation in Florida was inequitable, and she added that there was a compelling reason for parallel litigation as the only garnishee in California was Princess, which owed less than $100,000, which was paltry for Buesking’s claim of a catastrophic spinal-cord injury. Therefore, Chief Judge Altonaga declined to vacate the Rule B garnishments.
Contract requirement that the seaman pay half of the initial filing fee for arbitration of his claims against the cruise line was not subject to the delegation clause in the arbitration provision and was declared unenforceable by the Magistrate Judge (in the seaman’s injury suit) when the seaman could not afford to pay the fee; however, the payment requirement was severable, and the Magistrate Judge recommended that arbitration be compelled but that the cruise line pay the arbitration fee; Taylor v. Carnival Corp., No. 1:25-cv-20851, 2025 U.S. Dist. LEXIS 150317 (S.D. Fla. Aug. 5, 2025) (Elfenbein).
This case presents issues similar to those addressed by Judge Williams in Wilson v. Carnival Corp., discussed in the September 2025 Update. Jennifer Melissa Fredericks Taylor, a citizen of Nicaragua, was injured while serving as a crewmember on the CARNIVAL BREEZE. She submitted a demand for arbitration to National Arbitration and Mediation in accordance with the arbitration provision in her employment agreement, which contained a fee-splitting agreement requiring the cruise line and crewmember to each pay half ($1,500) of the fees required to initiate the arbitration ($3,000). Taylor asserted financial hardship and requested that NAM require Carnival to pay the full initiation fee in accordance with its discretionary rules. The cruise line declined to pay Taylor’s half, and NAM closed the arbitration due to the nonpayment. Before the running of the statute of limitations, Taylor brought suit against the cruise line in Florida state court under the Jones Act and general maritime law, with her counsel paying the filing fee of $401, and the cruise line removed the case to federal court based on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention). Taylor moved to remand the case, arguing that the cruise line waived its right to arbitrate by refusing to advance the full initiation fee, that the arbitration agreement had become null and void because the fee requirement limited the right of the claimant to trial by a court of competent jurisdiction, and that the issue with respect to the initial payment was not a gateway question of arbitrability to be decided by the arbitrator as the seaman could not access arbitration without resolving the payment issue. Taylor submitted an affidavit stating that she earned $1.60 per hour with a guaranteed monthly wage of $900, that she had no income after her injury and termination from employment, that she had to borrow the money for her surgery (using her only asset, her home in Nicaragua that she co-owns with her mother), that she lost her home after defaulting on the loan, and that she has no savings, no income, no credit, and no assets. The cruise line argued that the arbitration agreement contained a delegation clause stating that disputes regarding the existence, validity, termination, or enforceability of the agreement are subject to arbitration. However, Magistrate Judge Elfenbein did not believe that the language clearly delegated questions concerning access to the arbitration forum. As the challenge centered on “access to arbitration in the first instance,” Magistrate Judge Elfenbein determined that the court had jurisdiction to decide the availability of the arbitration forum. The ruling was different, however, with respect to the argument that the cruise line waived its right to arbitrate. Magistrate Judge Elfenbein reasoned that the assertion of waiver disputed “the merits of her claims or procedural rules within arbitration.” Therefore, waiver was an issue to be decided in the arbitration in accordance with the delegation clause. Magistrate Judge Elfenbein then considered the Effective Vindication Doctrine as a defense under the New York Convention—that requiring Taylor to pay half of the initiation fee rendered the arbitration agreement unenforceable because it precluded her from effectively vindicating her rights. Citing the decisions from the Eleventh Circuit, Magistrate Judge Elfenbein noted that Taylor had to present evidence of the amount of fees she is likely to incur and her inability to pay the fees. Taylor identified the precise cost she was required to pay ($1,500); she established that she was unable to pay the fee; and the failure to pay had caused NAM to close the arbitration. Magistrate Judge Elfenbein then addressed whether the payment requirement was severable. The cruise line argued that Panama law was applicable based on the law of the flag of the vessel, but Magistrate Judge Elfenbein found the cruise line’s “invocation of Panamanian law is wholly insufficient,” reasoning that its “failure to provide even minimal engagement with the go9verning code provisions warrants skepticism of its position and justifies applying the law of the forum instead.” Applying Florida law, Magistrate Judge Elfenbein was persuaded by Judge Williams’ reasoning in Wilson v. Carnival, removing the fee-splitting provision but leaving “intact the remaining arbitration obligations while providing a clear structure for assigning costs going forward.” By severing the requirement for Taylor to pay half of the initiation costs, the provision required that the cruise line pay the costs, and all impediments to Taylor’s right to pursue arbitration were eliminated. Accordingly, Magistrate Judge Elfenbein recommended that the parties be compelled to arbitrate the claims.
Bank account with no funds at the time of the attachment is not property within the district for purposes a Rule B attachment; Transportacion Maritima Mexicana S.A. de C.V. v. Andino Shipping, LLC, No. 3:25-cv-1306, 2025 U.S. Dist. LEXIS 151105 (S.D. Tex. Aug. 6, 2025) (Boyle).
Transportación Maritima Mexicana (TMM) entered into a SHELLTIME 4 Time Charter with Andino Shipping to charter the chemical tanker ANDINO ALPHA. TMM asserts that the vessel was not ready for delivery and that Andino substituted the ANDINO DELTA, which had a reduced discharge capacity and had multiple deficiencies that prevented her from entering service for TMM. Claiming damages of $2,513,319.41 (that it will seek to recover in London arbitration), TMM brought this action in federal court in Texas seeking a writ of attachment for property belonging to Andino held by garnishee, Comerica Bank. Andino moved to vacate the writ of attachment and to dismiss the suit for lack of jurisdiction, arguing that there were no funds in the bank account held by Comerica Bank and that it had no property within the district. TMM argued that the motion was premature because the court’s order provided that the writ would automatically expire 90 days from the date of its issuance “if no assets or other property have been restrained pursuant to this Order.” However, Judge Boyle answered that Rule E(4)(f) allows the defendant to move to vacate once the writ is issued, and nothing in the order restricted Andino from moving to vacate the writ. TMM cited a case from the United States District Court for the Southern District of New York stating that the purpose of Rule B “is to provide claimants an opportunity [to] locate assets within a district,” but TMM did not show that funds were “likely coming into the District.” TMM argued that a bank account with no funds “constitutes property such that the Writ can remain attached,” reasoning that the account itself is property: “it is not the assets within a bank account that convey jurisdiction, it is the situs of the account and the court’s jurisdiction over the garnishee.” Judge Boyle rejected that argument, holding that an account with no funds is not property for purposes of a Rule B attachment. She explained that “the Garnishee being subject to personal jurisdiction in this District ‘does not obviate the requirement that the attaching court have jurisdiction over the thing to be attached.’” There was no jurisdiction over the thing to be attached because there were no funds to which the writ could attach. Thus, she vacated the writ. And, as the action sought solely to pursue the attachment of Andino’s property, vacating the writ terminated the court’s jurisdiction over Andino (Judge Boyle also declined to permit discovery and quashed TMM’s subpoena, reasoning that the court could not allow discovery when there was no property that had been attached in the district).
Conviction in state court for filing a false lien was dispositive of salvor’s claim for voluntary salvage; Curran v. Fronabarger, No. 1:23-cv-1064, 2025 U.S. Dist. LEXIS 151351 (W.D. Tenn. Aug. 6, 2025) (Anderson), adopting recommendation of 2025 U.S. Dist. LEXIS 148689 (W.D. Tenn. June 30, 2025) (York).
John F. Curran III considered purchasing the Saltillo Marina located on the Tennessee River, but he discovered that the seller, Carl Fronabarger, had abandoned it and the marina had broken free from its moorings and drifted downriver. Curran allegedly salvaged the fuel tanks to avoid spillage of fuel, and he sought a salvage award from Fronabarger. Fronabarger refused to pay, and Curran filed a lien against the marina’s anchorage and moorings and refused to honor a check that he had issued to a crew member (Dustin Scott) who helped him with the salvage. The State of Tennessee indicted Curran for filing a false lien for his salvage services (and for passing a worthless check), and Curran filed this suit in federal court in Tennessee against the State of Tennessee, Fronabarger, the presiding judge, and the prosecuting attorney, asserting that the State lacked subject matter jurisdiction to prosecute him for actions taken in connection with securing compensation for salvage services (arguing that his services in navigable waters fell squarely with the federal courts’ exclusive admiralty jurisdiction). He sought an injunction to halt the criminal proceedings, and Magistrate Judge York recommended denial of his request. Judge Anderson agreed with the recommendation for denial of the request for a preliminary injunction because the Younger abstention doctrine prevented the federal court from interfering with the state criminal prosecution. Curran filed an interlocutory appeal to the Sixth Circuit, citing the exception to abstention when the plaintiff challenges a statute that is flagrantly violative of express constitutional prohibitions. Curran argued that “Tennessee lacks jurisdiction to prosecute him for actions taken in connection with securing compensation for ‘a salvage operation [that] took place on federal property’—i.e., the Tennessee River—because such conduct falls squarely within the federal court’s exclusive admiralty jurisdiction.” The Sixth Circuit disagreed, responding that Curran could not show that Tennessee’s fraudulent lien law flagrantly violated express constitutional prohibitions and that the extension of admiralty jurisdiction did “not necessarily preclude a state from exercising concurrent jurisdiction with the federal government over criminal acts committed within its territorial waters.” Concluding that Curran did not show a likelihood of success on the merits, the Sixth Circuit affirmed the denial of an injunction. See October 2024 Update.
With the side issues in the background, Fronabarger moved for judgment on the pleadings, arguing that Curran could not establish his claim for voluntary salvage services (that gave rise to the lien that he filed on Fronabarger’s property). Magistrate Judge York noted that, in order to establish a salvage claim, Curran would have to establish a maritime peril, voluntary service, and success. Fronabarger argued that there was no basis for the salvage claim because Curran was convicted on the charge of filing a lien for his salvage efforts with no reasonable or legal basis. Reasoning that the conviction for violating the false-lien statute prevented Curran from arguing that he had a reasonable basis or legal cause for the salvage claim, Magistrate Judge York recommended that the case be dismissed on the pleadings. Magistrate Judge York also recommended that Curran’s motion for an extension of time to respond (on the ground that he was being detained by the Tennessee Department of Corrections and did not have a law library with modules for maritime law) be denied because the materials would not cure the “fatal issue in this case—that Defendant had been convicted for violating Tennessee’s false-lien statute, and with no reasonable basis for filing the lien.” Curran objected to the recommendations, but Judge Anderson agreed that Magistrate Judge York correctly found that Curran’s conviction prevented him from arguing that he had a reasonable basis or legal cause for the salvage claim. Curran argued that Magistrate Judge York failed to correctly apply “over 100 years of federal maritime law,” but he did not address the finding that that his conviction precluded a finding of a reasonable basis for the salvage claim (Curran denied being convicted of a crime, but Judge Anderson pointed out that “public records show that he is a convicted felon and is on parole until 2028”). Judge Anderson added that Curran’s “complaints about the proof in his criminal trial in Hardin County are irrelevant.” Judge Anderson also agreed with the denial of the motion for an extension, noting that Curran did, in fact, file a response, and, anticipating an appeal, Judge Anderson stated that an appeal would not be taken in good faith if Curran requested that he be allowed to appeal in forma pauperis. Curran did file a notice of appeal on August 12, 2025.
Athens Convention limited passenger’s recovery for injury on Mediterranean cruise that began and ended in Italy and that did not involve a port in the United States; Ritcey v. NCL (Bahamas) Ltd., No. 1:23-cv-23384, 2025 U.S. Dist. LEXIS 153976 (S.D. Fla. Aug. 6, 2025) (Moore).
Passenger Elizabeth Ritcey boarded the NORWEGIAN GEM in Venice, Italy on a cruise through the Mediterranean Sea and, later that day, tripped and fell on a change in level in her stateroom’s flooring surface. She brought this action against the cruise line in federal court in Florida, and Ritcey and the cruise line filed motions for partial summary judgment with respect to the defense asserted by the cruise line that the Athens Convention limited the cruise line’s liability. The Athens Convention has not been ratified by the United States and carries no force of law on its own in the United States. However, the cruise line argued that it was enforceable by its incorporation into the Guest Ticket Contract. Ritcey argued that although the Convention applies to ships with a foreign itinerary, it violated public policy to apply it to the cruise line that is headquartered in Miami. Judge Moore rejected Ritcey’s argument, holding that the clause was enforceable, as a contract term because the cruise began and ended in Italy and never touched a port in the United States. Judge Moore then addressed whether the incorporation of the Athens Convention was reasonably communicated to Ritcey so as to be binding on her. Ritcey argued that the language in the Guest Ticket Contract was insufficient to communicate the limitations in the Athens Convention, reasoning that she “would have had to look up all of the different foreign treaties referenced in the provision to understand the ticket contract.” Ritcey cited language in the Wajnstat decision from the United States District Court for the Southern District of Florida in which Judge Cooke declined to apply the limitation in the Convention because a passenger would have to read the entire treaty, as well as its revisions, protocols, and amendments (as the contract did not identify the particular article or provision), and would have to review the several statutes cited to determine if any applied. Judge Moore did not find the incorporation of the limitation in this case to suffer from the same deficiencies, noting that the provision contained an approximate currency value of the Special Drawing Rights (the units used in the Athens Convention to calculate the liability limitation), that there were no unidentified statutes that may or not be at play, and that the only provision that the ticket included as a liability limitation was the Athens Convention. Judge Moore also rejected the argument that the passenger had to go to an outside source for the value of the SDRs, or that the current value of the SDRs was less than the approximate amount stated in the ticket ($570,000), noting that the value fluctuates and that the ticket sufficiently explained that the Convention applied and that there would be a resulting limitation of liability. Accordingly, Judge Moore granted summary judgment that recovery was limited by the Athens Convention.
District Judge vacated attachment of ship, concluding that the owner of the ship that was attached was not an alter ego of the company against whom an arbitration award had been entered; Atlantic Oceanic LLC v. HF Offshore Services Mexico SAPI de CV, No. 2:25-cv-974, 2025 U.S. Dist. LEXIS 152925 (E.D. La. Aug. 8, 2025 (Milazzo).
HF Offshore Services Mexico SAPI (HF Mexico) time chartered a supply vessel, the M/V ATLANTIC TONJER, from Atlantic Oceanic, and Atlantic Oceanic claims that HF Mexico wrongfully terminated the charter. Atlantic Oceanic submitted its claims against HF Mexico to a London arbitration, and more than $10 million has been awarded. Atlantic Oceanic then filed this suit in federal court in Louisiana against HF Mexico, HF Hunter Shipping (owner of the vessel HF HUNTER), and HF Offshore Towing SAPI (HF Towing), arguing that the companies are alter egos. Atlantic Oceanic argued that it was entitled to attach the HF HUNTER to enforce the arbitration award because HF Mexico formed HF Hunter to transfer ownership of the vessel to HF Hunter to shield the vessel from liability arising from HF Mexico’s breach of the charter with Atlantic Oceanic. The vessel was attached, and HF Hunter moved to vacate the attachment. Magistrate Judge Dossier held a post-attachment hearing and concluded that Atlantic Oceanic did not establish probable cause to support that theory. HF Towing purchased the vessel and transferred it to HF Hunter not to shield assets but because the shareholders of HF Hunter needed to move forward with the transaction as a business opportunity before they could form HF Hunter. Magistrate Judge Dossier also found that the parties were not alter egos and that HF Mexico did not directly or indirectly control decisions related to the HF HUNTER. Accordingly, she recommended that the attachment be vacated. Atlantic Oceanic filed a motion to alter or amend the judgment, but Magistrate Judge Dossier declined to reconsider the decision. Judge Milazzo conducted a de novo review and found the ruling and reasoning to be “complete and unimpeachable.” Therefore, she vacated the attachment. Hunter Shipping moved for release of the vessel, and Atlantic Oceanic moved for a stay of the release pending appeal. Atlantic Oceanic argued that it was entitled to an automatic stay under Rule 62(a), but Judge Milazzo stated that a motion to vacate a maritime attachment is governed by Supplemental Rule E(5)(c), which provides that a vessel “may be released forthwith” upon order of the court, suggesting that “the release of a vessel is incompatible with an automatic stay.” Judge Milazzo held that the appropriate standard is in Rule 62(c), which requires consideration of whether the applicant has made a strong showing of the likelihood of success on the merits, whether the applicant will be irreparably injured absent a stay, whether issuance of the stay will substantially injure the other parties interested in the proceeding, and where the public interest lies. Judge Milazzo did not believe that Atlantic Oceanic had made a strong showing of the likelihood of success. With respect to the second and third factors, Judge Milazzo found that both parties stood to suffer harm from an adverse outcome, and that Atlantic Oceanic failed to show that the balance of equities weighed heavily in favor of a stay. Finally, Atlantic Oceanic argued that leaving the attachment in place would result in “‘preserving the status quo’ of honoring international arbitration,” but Judge Milazzo was unpersuaded as the only party involved in the arbitration was HF Mexico, not the party whose vessel was being attached. Therefore, Judge Milazzo ordered the vessel released to HF Hunter. Atlantic Oceanic sought a stay from the Fifth Circuit (pending appeal), and the Fifth Circuit remanded the case to the district court to explicitly address the effect of the ongoing listing of HF Mexico as the operator and guarantor of the vessel’s potential pollution liability in the Coast Guard’s Certificate of Financial Responsibility database and the ongoing listing of HF Mexico as owner/operator of the vessel in the NRC Covered Vessels Washington State Contingency Plan database. The Fifth Circuit advised the district court to consider requiring a bond from Atlantic Oceanic to maintain the attachment in the event the court concluded that the attachment was still unwarranted. See August 2025 Update.
On remand, Judge Milazzo held an evidentiary hearing and issued findings of fact and conclusions of law. She found that “HF Hunter is owned, funded and controlled by a group of independent shareholders with whom HF Mexico has no corporate connection and, as a result, cannot be an alter ego of HF Mexico.” She concluded that Atlantic Oceanic’s claims, “particularly those regarding the factors of consolidated financial statements, financing of the alleged subsidiary, and the alleged subsidiary’s operation with grossly inadequate capital—are mere suspicions.” Therefore, she ordered the release of the vessel to its owner, HF Hunter Shipping. On the same day, Atlantic Oceanic filed a notice of appeal to the Fifth Circuit.
Note that our July 2025 Update reported that Atlantic Oceanic brought a separate proceeding against HF Mexico in the United States District Court for the Southern District of Mississippi, seeking a Rule B attachment of the M/V HF HUNTER, owned by HF Hunter Shipping (HF Hunter). Atlantic Oceanic claimed that HF Mexico created HF Hunter for the purpose of shielding assets from the London arbitration awards. The HF HUNTER was scheduled to dock in Pascagoula, Mississippi, and Magistrate Judge Myers issued Process of Attachment of the vessel. However, after the suit was filed, the vessel turned around and did not enter the Southern District of Mississippi. HF Hunter then moved to vacate the attachment, arguing that the court lacked personal jurisdiction over HF Hunter, a Singapore company with its principal place of business in Mexico as it did not have property in the district to attach to obtain jurisdiction. HF Hunter also argued that the attachment should fail because Atlantic Oceanic had not shown that HF Hunter was an alter ego of HF Mexico so that it could attach HF Hunter’s property and that the dismissal should be with prejudice because Atlantic Oceanic had previously dismissed similar claims in a suit in federal court in Texas. Chief Judge Ozerden agreed that the court did not have personal jurisdiction as the vessel never entered the district. Therefore, he vacated the Process of Attachment and dismissed the case for lack of personal jurisdiction. Chief Judge Ozerden declined to rule on the other arguments and stated that the order would not operate as an adjudication on the merits of the dispute, stating that when the district court lacks jurisdiction, “it is emphatically powerless to reach the merits.” Accordingly, the dismissal was without prejudice.
Judge declined to strike superseding cause defense in passenger’s injury suit against cruise line; Martin v. Royal Caribbean Cruises Ltd., No. 1:25-cv-22498, 2025 U.S. Dist. LEXIS 154363 (S.D. Fla. Aug. 8, 2025) (Bloom).
Sydney Gabrielle Martin, a passenger on the ALLURE OF THE SEAS, was injured when she slipped and fell on beads that spilled to the deck from the broken bracelet of another passenger who was a contestant in a dodgeball game. Martin brought this suit against the cruise line in federal court in Florida, and the cruise line answered with numerous affirmative defenses, including the defense that the incident and injuries were the result of intervening, independent, superseding, and/or unforeseeable causes for which the cruise line had no duty to protect Martin. Citing Florida law, Martin argued that the cruise line failed to identify the third parties; however, Judge Bloom answered that the Florida statute applies when the defendant intends to allocate fault to a nonparty. The affirmative defense in this case is, in contrast, a superseding cause defense that applies “where the defendant’s negligence in fact substantially contributed to the plaintiff’s injury, but the injury was actually brought about by a later cause of independent origin that was not foreseeable.” Judge Bloom explained that the superseding cause defense “exculpates the defendant of any liability in the matter.” As the defense raised issues of comparative fault or superseding cause, the affirmative defense was proper, and Judge Bloom declined to strike it.
Online complaints on the cruise ship website about an excursion put the cruise line on notice of the dangerous condition of the waterslide on which a passenger was injured for the counts involving failure to warn, negligent maintenance, and negligent retention of the contractor, but not for the claim of negligent selection of the contractor; online complaints on the cruise line website did not provide notice to the tour operator for the agency claim against the cruise line for the negligence of the tour operator; Vinyard v. Carnival Corp., No. 1:24-cv-23851, 2025 U.S. Dist. LEXIS 155374 (S.D. Fla. Aug. 12, 2025) (Gayles).
Mark Vinyard, a passenger on the CARNIVAL MARDI GRAS, was injured on an excursion in the Dominican Republic operated by Damajaguas Waterfalls and Buggy Tour. Vinyard was using a waterslide that empties into a pool of water, but there was insufficient water on the slide. He had to rock back and forth to make it down the waterslide and, at the bottom, fell off the edge of the waterslide and into concealed rocks. Vinyard brought this suit against the cruise line in federal court in Florida, including counts for negligent failure to warn, negligent maintenance, negligent selection and retention of the tour operator, and negligence based on agency with respect to the tour operator. The cruise line moved to dismiss the counts for failure to warn and negligent maintenance on the ground that the complaint failed to sufficiently allege notice of the risk-creating condition. Citing the allegations that the cruise line was aware of prior reviews on its website in which passengers reported injuries as a result of rocks hidden along the waterfall slide, Judge Gayles declined to dismiss these counts. Judge Gayles reached a different conclusion with respect to the claim for negligent selection of the tour operator. Vinyard alleged that the cruise line should have known that the tour operator did not have safe waterslides because of its involvement in the planning process for the excursion; however, Vinyard provided no detail explaining how participation in the planning put the cruise line on notice of safety issues with the excursion or the fitness of the tour operator. Therefore, Judge Gayles dismissed that count without prejudice. Judge Gayles found sufficient notice for the negligent retention claim based on the reviews containing complaints involving the excursion. Finally, with respect to the claim that the cruise line is liable for the negligence of the tour operator through principles of apparent agency or agency by estoppel, Judge Gayles reasoned that Vinyard did not allege the underlying elements of a negligence claim against the tour operator (the complaint failed to allege notice for the tour operator, and reviews on the cruise line website did not establish notice on the part of the tour operator). Accordingly, Judge Gayles dismissed the agency count without prejudice.
Pedestrian passenger who was injured by passenger on motorized scooter while exiting the crowded theater on a cruise ship, sufficiently alleged notice for a negligent design claim when the exit being used was not originally designed for use by motorized scooters; Hopkins v. Carnival Corp., No. 1:25-cv-20363, 2025 U.S. Dist. LEXIS 155555 (S.D. Fla Aug. 12, 2025) (Ruiz).
Leola Y. Hopkins, a passenger on the CARNIVAL MARDI GRAS, was injured while exiting a very crowded late-night comedy show on Deck 7 of the vessel. A passenger operating a powerchair/motorized scooter backed up into the crowd and ran over Hopkins’ foot, knocking her backward onto stairs. Hopkins brought this suit against the cruise line in Florida federal court, asserting counts for negligence and negligent design. Hopkins’ complaint was dismissed twice, and the cruise line moved to dismiss her Second Amended Complaint. The cruise line argued that Hopkins failed to sufficiently plead notice, and Hopkins responded that the dangerous condition was combining the exit for handicap seating with pedestrian traffic exiting from the theater in a manner that caused motorized chairs to collide with those on foot. She argued that the cruise line had to remediate its ships to comply with regulations under the Americans With Disabilities Act, and Judge Ruiz agreed that the regulations would be admissible for the standard of care. However, even if the regulations were admissible with respect to notice, Hopkins did not establish how any failure to comply with the regulations was related to the dangerous condition she alleged. With respect to the negligence count, Hopkins cited warnings/policies for guests with disabilities that careful attention must be paid when backing in and out of elevators, as they are often in close proximity to the staircase and may be narrow and difficult to navigate. She also cited the website reminder that mobility devices should not be parked or left unattended in areas where guests exit from the venue and that the devices must be clear of exits or fire doors (suggesting that the cruise line was aware of the danger of commingling mobility devices and pedestrians). Judge Ruiz agreed that warnings may be evidence of notice, but there must be a connection between the warning and the danger, and there was no connection between the warnings and the dangerous condition. Judge Ruiz explained that the Eleventh Circuit has cautioned that the passenger must point to “particularized corrective action” that is aimed at mitigating the specific kind of danger alleged in the suit. As Hopkins did not establish notice with respect to the negligence count after three pleadings, Judge Ruiz dismissed that count with prejudice. Turning to the count for negligent design, Hopkins cited the layout of the ship’s accessibility routes on Deck 7 that showed no accessible routes for entry to the Mardi Gras theater on Deck 7 for those using mobility devices (the designated seating for handicapped passengers and mobility devices is located on Deck 6). Hopkins argued that the cruise line allowed a passageway for exiting/entering the theater on Deck 7 for additional temporary or improvised handicap seating, and that the cruise line should have known that the passageway was too narrow to accommodate handicap access as the passageway was not designed for that use. Judge Ruiz held that this was a viable theory, and he allowed Hopkins to amend her complaint to replead the negligent design count with that sole theory for notice.
Ryan WWLP was still available for the cross-claim of the vessel charterer against the crane company involved in unloading cargo in connection with the death of the vessel’s bosun during cargo operations, and there were fact questions whether there was indemnity owed by the charterer to the crane company from the daily job tickets; Keystone Terminal Holdings of Florida, LLC v. Hardie, No. 3:24-cv-175, 2025 U.S. Dist. LEXIS 155593 (M.D. Fla. Aug. 12, 2025) (Berger).
Salih Bebek, a bosun on the M/V MAPLE was crushed to death by a 20,000-pound crane bucket. Bebek’s personal representative brought suit against several parties in federal court in Florida. Sims Crane contracted with Keystone Properties, charterer of the vessel, to assist with unloading cargo. Logistec Gulf Coast provided the crane. Fiber Marine Ship Management operated the vessel and employed Bebek. Maple Marine owned the vessel. Jeffery May was employed by Sims Crane as the crane signal man, and Patrick William Hardie was employed by Sims Crane as the crane operator. The plaintiff alleged that crane operator Hardie could not see the deck as he lowered the crane bucket and relied on signal man May to signal the appropriate direction. All of the parties settled with Bebek’s representative, and Sims Crane (and its employees) filed a cross-claim against Keystone for contractual indemnity. Keystone responded with a claim for tort-based indemnity, contribution, and breach of contract. The crane defendants moved to dismiss Keystone’s cross-claims, and Judge Berger began by noting that there are three theories for indemnity under maritime law, contractual indemnity, the Ryan warranty of workmanlike performance, and non-negligent or vicarious liability tortfeasor indemnity. Judge Berger explained that Ryan indemnity has been chipped away by the 1972 Amendments (LHWCA Section 5(b)) but is still viable in a limited fashion in the Eleventh Circuit. As the Amendments bar indemnity by the vessel against the worker’s employer, and as the crane defendants did not employ Bebek, the Amendments did not bar Keystone’s Ryan claim. Judge Berger then held that Keystone sufficiently pleaded a Ryan claim by asserting that Sims Crane agreed to provide stevedoring services with an implied warranty of workmanlike performance that it breached in this case. Judge Berger could not find any authority whether the warranty applied to employees May and Hardie and requested further briefing. Judge Berger declined to dismiss the Ryan claim, the breach of contract claim, and the contribution claim, but she dismissed the claim for deceptive and unfair trade practices under Florida law.
Sims Crane sought indemnity from Keystone based on an indemnity provision in Daily Job Tickets signed by a Keystone representative. On the day in which Bebek was killed, the signature was added after Bebek was struck and killed, and the Keystone representative denied that the signature was his. Additionally, the representative testified that he signed the tickets without looking at the terms and conditions, believing that he was simply approving the time sheet so they would be paid. Thus, there were fact questions that precluded granting indemnity to Sims Crane based on the job tickets. Sims Crane and its employees then sought summary judgment on the equitable indemnity and contribution claims against the crane defendants, arguing that the claims were based on the negligent acts of Hardie and May but the workers were borrowed servants of Keystone (citing the job tickets that stated that Keystone had exclusive control over the workers). As that is only one of 9 factors to consider in the determination of borrowed servant status, Judge Berger declined to grant summary judgment.
Cargo shipper failed to sufficiently plead claims against the cargo inspectors or the company that coordinated the transfer of the cargo from the ocean carrying vessel to inland barges in connection with water damage to the cargo that was discovered at the conclusion of the barge transportation, but the cargo shipper was allowed to plead with more specificity; Mac Metal Sales, Inc. v. Ingram Barge Co., No. 2:25-cv-422, 2025 U.S. Dist. LEXIS 156258, 169958 (E.D. La. Aug. 13, 2025, Sept. 2, 2025) (Vance).
Mac Metal arranged for the shipment of more than 5,500 metric tons of steel coils from Busan, South Korea to New Orleans, Louisiana on the M/V LOWLANDS FIDELITY. A pre-shipment survey indicated that the cargo was generally in good condition when loaded. The vessel docked in New Orleans, and Mid-Ship Logistics coordinated the movement of the coils to barges of Ingram Barge Co. Mac Metal alleges that surveyors employed by Marine Inspection were not allowed to witness the transfer of the coils. The barges were towed to Harahan, Louisiana, where inspectors for Marine Inspection observed water in one of the four barges (the T-13995). When the barges arrived in Indiana a month later, there was water damage to the coils on the T-13995. Mac Metal brought this suit in admiralty in Louisiana federal court against several defendants, including Mid-Ship Logistics and Marine Inspection. Marine Inspection and Mid-Ship Logistics moved to dismiss the complaint for failure to state a claim. Judge Vance accepted that Marine Inspection had a duty to perform an inspection of the cargo with reasonable care. However, the complaint did not suggest that Marine Inspection failed to exercise reasonable care. The complaint alleged that the inspectors were denied access to the ship during the transfer to the barges and that the inspectors reported water in the barge when the inspection was conducted a few days later in Harahan. Additionally, there was no allegation that Marine Inspection played a role in the damage to the coils because they were already in the water when the inspectors accessed the barge. As there had only been one complaint filed in the suit, Judge Vance granted leave for Mac Metal to sufficiently plead breach of duty and causation. With respect to Mid-Ship Logistics, Mac Metal pleaded that Mid-Ship Logistics “was its agent, charged with facilitating and coordinating the discharge of the cargo into Ingram barges, ‘as well as ensuring those barges were suitable for transporting [Mac Metal’s] cargo.’” However, Judge Vance noted that Mac Metal provided no factual basis for the creation of an agency agreement. In the absence of anything other than the conclusory allegation that Mid-Ship was its agent, Mac Metal failed to plausibly allege a claim for negligence. Therefore, Judge Vance dismissed the claim against Mid-Ship Logistics with an opportunity to file an amended complaint.
Delaware court transferred exposure claim of Florida resident arising from the Macondo/DEEPWATER HORIZON blowout to Florida; Jackson v. BP Exploration & Production Inc., No. 1:25-652, 2025 U.S. Dist. LEXIS 156432 (D. Del. Aug. 13, 2025) (Connolly).
Danielle Jackson, a resident of Santa Rosa County, Florida, claims she has injuries that were caused by exposure to toxic chemicals and dispersants in Florida around Pensacola, Fort Walton Beach, Panama City Beach, Fort Pickens, Navarre Beach, and Milton, and from ingesting contaminated seafood from the Gulf of America. She brought this suit in federal court in Delaware against BP, Transocean, and Halliburton, alleging that the defendants are Delaware corporations with principal places of business in Houston, Texas. After completion of the MDL process before Judge Barbier, the case was remanded to Delaware, and the defendants moved to transfer the case to the United States District Court for the Northern District of Florida. Chief Judge Connolly weighed the factors with respect to transfer and agreed to transfer the case to the federal court in Florida. Chief Judge Connolly reasoned that Jackson was a resident of Florida, which has a substantial interest in adjudicating claims involving exposure to harmful toxins in its borders. The allegations also implicated Florida’s environmental and public health policies. Noting that a majority of factors weighed in favor of transfer and only one weighed against transfer, Chief Judge Connolly transferred the case.
Breach of recommendations warranty in hull policy voided coverage for damage to yacht, even though the yacht was in absolutely perfect condition; insurer did not waive its right to declare the policy void ab initio based on knowledge of non-compliance with the warranty because the warranty only required compliance before the loss, not at the inception of coverage; Judge rejected application of uberrimae fidei against insurer for failing to provide notice of the insured’s obligations because the policy provided notice; Judge rejected claims of negligent misrepresentation/fraud against the insurer’s underwriting agent as it was non-compliance before the loss, not non-compliance at the issuance of the policy that resulted in loss of coverage ; Clear Spring Property & Casualty Co. v. Arch Nemesis, LLC, No. 2:22-cv-2435, 2025 U.S. Dist. LEXIS 156532 (D. Kan. Aug. 13, 2025) (Crabtree).
Jamie and Kimberly McAtee, who are residents of Kansas, sought to purchase a yacht to use in Cabo San Lucas, Mexico. They were referred to Off the Hook Yacht Sales and started working with its boat broker Al DiFlumeri. The McAtees purchased the yacht (moored in Texas) through their company, Arch Nemesis, intending to move the yacht to Cabo San Lucas for commercial and personal purposes. Arch Nemesis worked with an insurance broker, West Coast Real Estate and Insurance, to place insurance on the yacht, and West Coast worked with Concept Special Risks, an independent underwriter acting for insurer Clear Spring Property and Casualty. Clear Spring issued the policy to Arch Nemesis on February 14, 2022, and Arch Nemesis paid premiums to its broker, West Coast. The yacht sailed to Mexico with no issues. On May 28, 2022, the designated captain took the yacht out without permission, and it ran aground on rocks, causing the yacht to sink. Arch Nemesis submitted an insurance claim, and Concept conducted an investigation and issued a reservation letter stating that the policy was void from its inception and that the claim was excluded. Arch Nemesis responded to the reservation letter, and Clear Spring followed with a denial of the claim and this declaratory judgment action in federal court in Kansas based on the court’s admiralty jurisdiction. Arch Nemesis counterclaimed against Clear Spring (pleading both contractual and extracontractual claims) and filed third-party claims against Concept (fraud and negligent misrepresentation), Off the Hook Yacht Sales (negligence and negligent misrepresentation), and West Coast (constructive fraud, negligent misrepresentation, negligence, and breach of contract). Arch Nemesis based its claims on the court’s diversity jurisdiction and demanded a jury. Off the Hook and Concept moved to dismiss the complaint against them for lack of personal jurisdiction. The Off the Hook defendants are North Carolina and Maryland limited liability companies that did not solicit business from Arch Nemesis. No representatives of the entities had ever visited Kansas, and the yacht never entered Kansas. However, the broker for Off the Hook, DiFlumeri, communicated with McAtee in Kansas, and Judge Crabtree believed that the communications with a Kansas resident to purchase a boat established minimum contacts with Kansas to justify specific jurisdiction over the Off the Hook defendants. Concept is incorporated and operates under the laws of the United Kingdom, but Judge Crabtree was persuaded that there were minimum contacts with Kansas because Concept’s engagement with Arch Nemesis, a Kansas LLC, spanned the application process and the claim handling. Concept argued that, as a foreign company, it was not properly served with process because it was not served under the Hague Convention. Arch Nemesis responded that it could serve Concept under the insurance policy provision for suit on Mendes & Mount in New York. Concept responded that it was neither a signatory nor a party to the insurance contract, leaving Judge Crabtree to determine Concept’s status under the policy and whether it fell within the term “Underwriters” in the clause addressing service. Judge Crabtree complained that the parties had “left the court rudderless in a sea of potentially applicable law,” so he reasoned that the court was sitting in diversity and that the court would apply the law of the forum (Kansas) under the well-known rule from Klaxon v. Stentor, in the absence of a showing that a different law should apply. Judge Crabtree noted that the parties argued “ardently” about whether the contractual choice-of-law provision could bind Concept as a non-signatory, but in order “to resolve this non-signatory question by applying the choice of law specified in the contract seems circular.” In the absence of a binding contractual choice of law, Judge Crabtree applied the law of the forum, Kansas. As the insurance contract did not define the term “Underwriters,” and as Judge Crabtree declined to find that the contract bound Concept as a non-signatory under the other theories proposed by Arch Nemesis, Judge Crabtree concluded that Concept had not been properly served. Judge Crabtree gave Arch Nemesis the opportunity to serve Concept properly within 90 days.
As Clear Spring based its declaratory judgment complaint on the court’s admiralty jurisdiction, Clear Spring moved to strike the jury demand of Arch Nemesis on its counterclaim against Clear Spring. Magistrate Judge James noted that the courts are split on the issue that she described as “whether Plaintiff’s election to proceed under admiralty without a jury should take priority over Defendant’s Seventh Amendment right to a jury under the saving to suitors clause merely because Plaintiff filed its declaratory judgment claims first.” Agreeing with Arch Nemesis, Magistrate Judge James reasoned that neither the Seventh Amendment nor any statute or rule forbids jury trials in maritime cases, and that the result sought by Clear Spring would “incentivize a race to the courthouse in cases such as this.” That left the issue of whether the insurer’s claims should also be tried to the jury even though they were brought pursuant to Rule 9(h). Magistrate Judge James stated, “Trying first either Plaintiff’s declaratory judgment claims to the court or Defendant’s counterclaims to the jury would necessarily prejudice the other by determining the entirety of the issue before the other has its opportunity to litigate in its chosen mode of trial.” As “the mere fact that Plaintiff won the race to the courthouse and filed its declaratory judgment action first should not deprive Defendant of its constitutional right to a jury trial,” Magistrate Judge James ordered that the entire case would be tried to a jury. See November 2023 Update.
Concept sought a “second bite from the proverbial apple,” renewing its motion to dismiss on the ground that the court did not possess personal jurisdiction over it. There were two intervening events. First, Arch Nemesis did properly serve Concept. Second, third-party defendant, West Coast Real Estate & Insurance, filed cross-claims against Concept and other third-party defendants. Concept argued that the issue of personal jurisdiction was not present in the earlier ruling that addressed whether there was sufficient service of process. Arch Nemesis responded by producing additional evidence to substantiate Concept’s contacts with Kansas. Although Judge Crabtree recognized that he could reconsider a decision on personal jurisdiction that was made at the stage of a motion to dismiss, he did not find the basis to do so when the case was still at the same stage in the proceeding and when the evidence was essentially the same, reasoning: “To reconsider Concept’s personal jurisdiction objection now would waste judicial resources and interfere with the court’s Rule 1 mandate to secure a speedy determination of this action.” Judge Crabtree then addressed the personal jurisdiction of Concept for the cross-claims filed by West Coast Real Estate. Judge Crabtree responded that “the court’s personal jurisdiction over Concept on Arch Nemesis’s third-party claims, as provisionally determined by the court’s previous Order—enables the court to exercise pendent personal jurisdiction over West Coast’s cross-claim, even if no independent basis for it exists.”
Judge Crabtree then considered the objection to the decision of Magistrate Judge James that the entire case would be tried to the jury, even though the case was brought as an admiralty case with a Rule 9(h) designation. The parties each argued that the majority of appellate decisions supported their position, and Judge Crabtree noted that the Fifth and Eleventh Circuits supported a non-jury trial and that the Fourth and Ninth Circuits supported a jury trial. The tie-breaking case was the Koch Fuels case from the Eighth Circuit, which took a middle path. Nonetheless, Judge Crabtree reasoned that “none of this majority-minority squabbling matters all that much” as there was still a split in the caselaw, and the Tenth Circuit (in which Kansas sits) was silent on the issue. Accordingly, Judge Crabtree could not find that Magistrate Judge James misapplied the law in an opinion that took one side in the circuit split. Judge Crabtree also agreed with the reasoning that a jury trial was appropriate because the declaratory judgment context of the case presented a “flipped-parties posture” with respect to the jury demand. Had the insurer not won the race to the courthouse by filing the declaratory judgment action on the same day that it denied the claim for coverage, Arch Nemesis would have brought the suit, and its demand for a jury would have governed the litigation. Clear Spring took issue with the “unseemly” and “inappropriately outcome-driven” order (citing Magistrate Judge James’ statement, “Plaintiff’s argument is akin to that of the boy who killed his parents and threw himself on the mercy of the court as an orphan”), but Judge Crabtree did not believe that he should “reject a magistrate judge’s order because its tone missed the mark.” Therefore, he denied the objection to the order for a jury trial on all issues. See September 2024 Update.
The issue of punitive damages was then considered in the context of Clear Spring’s objection to discovery related to punitive damages. Although our long-suffering readers know that the Update does not generally summarize opinions confined to discovery disputes, we do discuss opinions in which discovery is related to an important substantive or procedural point. Clear Spring argued that Arch Nemesis’ claim for punitive damages under New York law was spurious, so that discovery related to punitive damages was irrelevant, reasoning that a fraud claim is not actionable when it shares common facts with the claim for breach of contract. Arch Nemesis responded that a fraud claim is cognizable if it is based on a misrepresentation of present facts and not a misrepresentation of future intent to perform under the contract—in this case, issuing a marine insurance policy to Arch Nemesis knowing it had not met the requirements to be covered under the policy. Magistrate Judge James stated that the standard to establish a non-spurious punitive damage claim was lower than the requirement for a dispositive motion. She held that Arch Nemesis had sufficiently alleged a punitive claim under New York law by asserting that Clear Spring’s conduct was “directed at the public generally” because of an alleged practice of issuing policies while being aware that the Recommendations Warranty had not been met and would serve as the basis for denial of an insured’s claim. Arch Nemesis cited ten other cases in which Clear Spring attempted to avoid covering a loss based on the Recommendations Warranty, and that Clear Spring uses a standard application form that does not mention anything about having to complete survey recommendations before a policy actually offers coverage. As Arch Nemesis had made a sufficient showing of a non-spurious claim for punitive damages, Magistrate Judge James held that Arch Nemesis could request discovery related to punitive damages. See November 2024 Update.
After three years, the case came down to Clear Spring asking the court to declare that there is no coverage for the loss of Arch Nemesis’ yacht and the claims and counterclaims of Arch Nemesis against insurer Clear Spring, Clear Spring’s underwriting agent and claims handler (Concept Special Risks), and Arch Nemesis’ insurance broker (West Coast Real Estate & Insurance). Essentially, Arch Nemesis claimed that “Clear Spring and Concept knew all along that the yacht’s insurance policy was void from inception—and misrepresented coverage to Arch Nemesis” (and that West Coast failed to fulfill its duties by not advising Arch Nemesis of the “void-from-inception dangers of the policy”). The parties filed three motions for summary judgment, and four motions to exclude testimony. When the dust settled, Judge Crabtree held that the policy was void ab initio, granted summary judgment to Clear Spring and Concept, and left the claims of Arch Nemesis against West Coast. Clear Spring asserted 7 declaratory judgment claims, but the court only needed to address one—that Arch Nemesis breached the Recommendations Warranty. As there is no firmly established federal maritime precedent governing the warranty involved in this case, Judge Crabtree applied state law under Wilburn Boat. The choice of law was designated in the policy (New York), and, following Raiders Retreat, Judge Crabtree applied the New York rule requiring “strict and literal compliance” with express warranties. The Recommendations Warranty provided that if the insurer requested a survey of the vessel, it was warranted that the survey must be received within 30 days of the effective date of the policy and that any recommendations with respect to the vessel must be completed prior to any loss giving rise to a claim (certified by the surveyor or the repairer that completed the work). Clear Spring requested the survey, the survey made eight recommendations, but Arch Nemesis did not produce a certification for 7 of the eight recommendations. Judge Crabtree noted that New York law provides that the loss need not flow from noncompliance with the breached warranty: “Noncompliance with the certification requirement forbids recovery—full and hard stop—regardless of the actual condition of the boat.” Thus, the argument that the boat broker “attested to the yacht’s ‘absolutely perfect’ condition is of no moment here.” The policy provided that the breach of any warranty voided the policy ab initio, and Judge Crabtree held that the failure to produce certifications for 7 of the 8 recommendations resulted in the policy being void from inception. Arch Nemesis argued that Clear Spring was estopped from voiding the policy because it issued the policy despite knowing of the failure to comply with the warranty (citing a New York case that an insurer cannot deny coverage based on facts that it knew at the time of the issuance of the policy). That argument was not supported by the language of the Clear Spring policy, however, which only required the insured to complete the recommendations prior to the loss giving rise to the claim. The certifications were a pre-loss, not pre-issuance requirement. Arch Nemesis also argued that Clear Spring never intended to pay the claim, citing hundreds of denials from Concept based on breach of the Recommendations Warranty. However, Judge Crabtree believed it was a “bridge too far” to conclude that Clear Spring intended from the beginning to deny the claim. Judge Crabtree also rejected the claim that Clear Spring “tricked” Arch Nemesis into believing the policy covered the vessel against loss, when “it didn’t,” arguing that the insurer breached its reciprocal duties under uberrimae fidei. In essence, Arch Nemesis tried to use the uberrimae fidei doctrine in a “novel fashion,” asking the court to “impose a duty on Clear Spring to warn Arch Nemesis about its contractual obligations beyond providing Arch Nemesis with the policy itself.” Judge Crabtree disagreed, holding that providing the policy to the insured satisfied the insurer’s disclosure requirements. Turning to Arch Nemesis’ claims for fraud and negligent misrepresentation against Concept, Judge Crabtree continued the rulings that the court had personal jurisdiction over Concept. Concept argued that New York law applied to the claims as the choice-of-law clause applied to any disputes under the policy. Judge Crabtree did not have to decide whether the chosen law applied to a third party as there is no material difference on the critical issue, which is the same as that applicable to the insurer. There was no evidence that either Concept or Clear Spring knew at the outset that the policy was void. Finally, the only motions with respect to broker West Coast involved Arch Nemesis’ argument that West Coast failed to establish a defense of comparative fault of Arch Nemesis with respect to the sinking of the boat. As there was evidence to support the claim, Judge Crabtree declined to dismiss the affirmative defense.
There was sufficient evidence of negligence to deny motions for summary judgment of independent contractors with respect to the injury to an employee of another independent contractor on an offshore platform; Miller v. Cox Operating, LLC, No. 6:23-cv-566, 2025 U.S. Dist. LEXIS 157152 (W.D. La. Aug. 13, 2025) (Joseph).
Nicholas Miller was injured on a fixed platform on the outer Continental Shelf of the Gulf of America in the South Timbalier area off the coast of Louisiana. Cox Operating was the owner and operator of the platform on which a construction project was being performed. Cox Operating engaged Gulf South Services to provide scaffolding and fire watch services, and Gulf South had two employees on the platform, Jorge Cruz and Hugo Navarro. Cox Operating engaged Crosby Energy Services to provide the Persons in Charge on the platform, Charles Brenner and Jacob Prince (who had the ultimate work authority). Cox Operating engaged ACE Investments for the steel renewal work, and ACE Investments provided Nicholas Miller as its welder and Eric Lara as the supervisor. Cox Operating engaged Industrial & Oilfield Services to provide a construction supervisor, Sonny Miller, to oversee the jobs being performed by ACE and Gulf South. Cox Operating had a contract with a third-party weather company, StormGeo. On the day of the accident, the weather was initially reported as good, but a severe weather alert was issued by StormGeo at 2:53 p.m., warning of severe thunderstorms and wind gusts reaching between 85 to 105 mph. Miller was welding a steel structure into position on the production deck when Sonny rushed to the production deck and called an “all stop” in response to the severe weather. Miller tried to climb to a higher level of the platform, but he was thrown to the ground and was struck by a metal tool cabinet that was blown over by the wind. Nicholas brought this suit in federal court in Louisiana against Cox Operating and added other defendants in amended complaints (based on Louisiana law under the Outer Continental Shelf Lands Act). Industrial & Oilfield Services/Sonny Miller and Gulf South Services moved for summary judgment. Industrial & Oilfield Services argued that Cox Operating had operational control over the platform, arguing that the terms of the master service agreement between Cox Operating and Industrial & Oilfield Services gave Cox Operating operational control over the platform and required that Industrial & Oilfield Services was required to adhere to Cox Operating’s policies. Judge Joseph disagreed with the contractual argument and noted that Industrial & Oilfield Services was deemed to be an independent contractor over which Cox Operating had no control over the manner and method of performance. The fact that the contract required the contractor to follow instructions, specifications, and safety protocols from Cox Operating did not establish that Cox Operating had operational control. Similarly, the fact that Cox Operating’s Persons in Charge were responsible for knowing and implementing Cox Operating policies did nothing more than establish a fact question whether Cox Operating controlled the “step-by-step process” for the work. Therefore, Judge Joseph denied summary judgment to Industrial & Oilfield Services/Sonny Miller. Gulf South sought summary judgment on the ground that, as an independent contractor, it had no duty to intervene in the actions of a worker employed by a separate independent contractor when there was no special relationship between the parties. Judge Joseph answered that there is a duty when an independent contractor exercises supervisory authority over the other, and he cited evidence that Jorge Cruz was assigned to the fire watch duties that included observing and reacting to unsafe work conditions, such as the presence of severe weather. Although Cruz was not actively on fire watch at the time of the incident, there was a question of when he was notified of the approaching severe weather and should have exercised his stop-work authority before going on break. Accordingly, Judge Joseph denied Gulf South’s motion.
Suit in state court by vessel’s deckhand (who was injured while transferring to an offshore platform) was removable to federal court under the OCSLA by a defendant that is a citizen of the forum state, but the worker’s Jones Act claims were severed and remanded to state court Jones v. W&T Offshore Inc., No. 4:24-cv-3885, 2025 U.S. Dist. LEXIS 157924 (S.D. Tex. Aug. 14, 2025) (Bennett), adopting recommendation of 2025 U.S. Dist. LEXIS 158223 (S.D. Tex. Feb. 26, 2025) (Palermo).
Robert N. Jones was employed by REC Marine Logistics and Gulf Offshore Logistics as a deckhand on the M/V GOL WARRIOR, which was supporting work being performed on a platform operated by W&T Offshore on the outer Continental Shelf of the Gulf of America at West Delta Block 73, offshore Louisiana (the vessel delivered materials, supplies, and personnel needed for work on the platform). Jones became seasick, and he claims that REC Marine and Gulf Offshore directed that he transfer to the platform. Jones was injured during the transfer, and he brought suit against Rec Marine, Gulf Offshore, and W&T Offshore in state court in Harris County, Texas under the Jones Act and general maritime law. W&T Offshore removed the case to federal court in Texas based on jurisdiction under the Outer Continental Shelf Lands Act. Rec Marine and Gulf Offshore moved to dismiss the case for lack of personal jurisdiction and improper venue, and Jones moved to remand the case to state court, arguing 1) that the presence of the Jones Act claim made the entire case nonremovable; 2) that the presence of Texas defendant W&T Offshore prevented removal; and 3) that the injury did not fall within the jurisdiction of the OCSLA. Magistrate Judge Palermo explained that suits involving Jones Act claims are not removable unless there is an independent basis for jurisdiction, such as the OCSLA, or if the Jones Act claim is fraudulently pleaded. Jones argued that his activity must have been part of the exploration or development of mineral resources in order to support OCSLA jurisdiction, but Magistrate Palermo disagreed, noting the “but for” standard that the injury would not have occurred but for the work on the OCS. As Jones was employed to support work being performed on the platform (development and production of minerals), there was jurisdiction under the OCSLA as a federal question. The jurisdiction under the OCSLA likewise disposed of the argument that the case was not removable by forum defendant W&T Offshore, as cases brought under federal question jurisdiction (OCSLA cases), even maritime cases, are removable without regard to the citizenship of the parties. Finally, Magistrate Judge Palermo noted that the Jones Act claims against REC Marine and Gulf Offshore were not removable, but the negligence claim against W&T under the general maritime law was removable under the OCSLA. Therefore, Magistrate Judge Palermo recommended that the Jones Act claims be severed and remanded and that the maritime negligence claim against W&T remain in the federal court. Rec Marine and Gulf Offshore filed a limited objection to language in Magistrate Judge Palermo’s recommendation to the extent of the facts stated with respect to the transfer of Jones to the platform. Judge Bennett clarified that the facts recited were taken from Jones’ Original Petition and that the court was not taking a position on the merits of the statements. Otherwise, Judge Bennett adopted the recommendation, severed and remanded the Jones Act claims, and retained the maritime negligence claim against W&T Offshore.
Judge declined to enjoin pursuit of maritime liens against vessels for necessaries provided to the vessels by a company formed by a principal of one of the owners (manager) of the vessel; Pennantia, LLC v. Rose Cay Maritime, LLC, No. 1:25-cv-5904, 2025 U.S. Dist. LEXIS 160032 (S.D.N.Y. Aug. 18, 2025) (Stein).
Pennantia, LLC, purchased 18 vessels (10 tank barges and 8 tugs) at a bankruptcy auction. Pennantia is owned by Contrarian Capital Management (86.25%) and Rose Cay Maritime (13.75%), and its vessels are managed by Rose Cay Maritime pursuant to a ship management agreement. Pennantia and Rose Cay Maritime agreed to engage Foss Maritime to act as technical and crewing sub-manager to bring the fleet into a serviceable condition. Foss Maritime stopped work on the project, and Rose Cay’s principal formed Dove Cay to continue the work. Pennantia had liquidity issues, and Contrarian Capital Management and Dove Cay entered into a credit receivables arrangement in 2022 by which Contrarian Capital Management and Dove Cay loaned Pennantia $12 million, with the agreement that repayment of the Dove Cay payment ($5.5 million) would be delayed until there was sufficient operating revenue after expenses or the vessels were sold. In 2025, Dove Cay filed notices of maritime liens against the 18 vessels in the amount of $29,409,943, based on management fees, necessaries, and the claimed balance of the Dove Cay Credit Receivables. Pennantia then brought this suit in federal court in New York and sought a preliminary injunction enjoining Rose Cay and Dove Cay from pursuing Dove Cay’s maritime liens against the Pennantia vessels. Judge Stein declined to grant the injunction, reasoning that the dispute was, “at its core a contract dispute between the owner of a fleet of ships and the manager of that fleet.” In the first place, Judge Stein held that Pennantia failed to show irreparable harm required for an injunction. The harm Pennantia would suffer in the absence of the injunction is monetary damages, and Pennantia argued that the monetary harm would be irreparable because the defendants are likely to be judgment-proof as the defendants have no other material assets of significance other than from their management of the vessels. Judge Stein noted that Pennantia would have to show that the defendants are insolvent or that their insolvency was likely and imminent, but it failed to carry that burden. Pennantia also argued that the existence of the liens might diminish the price of a future sale, but Judge Stein responded that this claim was relevant to the amount of monetary harm, not its irreparability. Judge Stein then considered whether Pennantia had established that it was likely to succeed on the merits. Pennantia argued that breach of a ship management agreement does not give rise to a maritime lien; however, Dove Cay did not assert maritime liens based on breach of a contract between Dove Cay and Pennantia but based on the provision of necessaries to the vessels. Pennantia also invoked the “owner exception” that a party with an ownership interest in a vessel cannot hold a maritime lien on the vessel, arguing that Dove Cay had the ability to control or influence the affairs of the vessels. Judge Stein disagreed, stating that Dove Cay claimed no equity stake or investment in the vessels and did not stand in the shoes of an owner of the vessels. Accordingly, Judge Stein declined to grant the preliminary injunction.
Judge transferred suit by docking facility against the Navy and shipbuilder (seeking to recover for damage to the docking facility) to the district where the Naval vessel was located at the time the suit was filed, even though that suit had no relation to the incident; North Shore Marine Terminal & Logistics, Inc. v. Lockheed Martin Corp., No. 2:24-cv-73 (W.D. Mich. Aug. 18, 2025) (Beckering).
Lockheed Martin used facilities of North Shore Marine Terminal in Escanaba, Michigan to dock the USS MINNEAPOLIS-SAINT PAUL, a littoral combat vessel, while it was engaged in sea trials. North Shore advised Lockheed and the captain of the vessel that gas turbine engines should not be used when departing or docking at the facility because the gas turbine engines cause damage to the seabed, seawall and dock. Nonetheless, the vessel used its gas turbine engines and caused damage to North Shore’s facility, and the vessel also backed into the seawall three times. North Shore brought this suit in federal court in Michigan against Lockheed and the United States Department of the Navy (under the Public Vessels Act). The Navy moved to dismiss the suit for improper venue based on the venue provision of the Public Vessels Act that actions under the statute shall be brought in the district in which the vessel is found within the United States. The vessel was located in Mayport, Florida when the amended complaint was filed naming the Navy. North Shore Marine responded to the motion to dismiss by requesting that the case be transferred to the federal court for the Middle District of Florida, even though that district had no relationship with the accident or damage. Noting that, under Section 1406(a), the judge may, in the interest of justice, transfer a case brought in an improper venue to the district in which it could have been brought, Judge Beckering transferred the case to the federal court in Florida.
Passenger who tripped on change in elevation in deck tiles on cruise ship failed to sufficiently plead notice of the dangerous condition; Bilicki v. MSC Cruises, S.A., No. 0:25-cv-60877, 2025 U.S. Dist. LEXIS 160777 (S.D. Fla. Aug. 19, 2025) (Dimitrouleas).
Kathleen Bilicki, a passenger on the MERAVIGLIA, tripped and fell on Deck 15 of the vessel (while walking from a lounge chair to the pool) on a change in elevation between the 12” x 12” tiles and the 1” x 1” tiles that was camouflaged by an optical illusion from the lounge beds and colors of the tiles. She brought this suit against the cruise line in Florida federal court, asserting claims for negligent maintenance, failure to warn, negligent training, and negligent design. The cruise line moved to dismiss the complaint for failure to sufficiently allege notice, and Bilicki responded with four incidents of falls on changes in elevation. She also argued that the crew posted caution signs in other areas of the deck, that she witnessed a crewmember cleaning the deck where the incident occurred, that the cruise line has policies requiring the crew to warn passengers of dangerous conditions, and that the cruise line is required to comply with international safety regulations. Judge Dimitrouleas did not consider the four incidents to be sufficiently similar because they were on different ships and Bilicki did not assert that the vessels were similarly configured. There may have been caution signs in other areas, but Bilicki did not allege there were signs in the area where she fell. The fact that an employee was cleaning in the area did not mean that the crewmember was aware of the optical illusion that made the change in elevation hazardous. Finally, the allegations about policies and regulations were too conclusory. Therefore, Judge Dimitrouleas dismissed the complaint with one opportunity to amend.
Passenger sufficiently alleged notice with respect to overcrowded condition of casino in which another passenger’s scooter caused a light fixture to fall on the injured passenger as there had been complaints, but the injured passenger failed to sufficiently allege notice for the claim involving overserving of alcohol and failed to sufficiently allege a vicarious liability claim without identifying crewmembers who acted negligently; Torian v. Carnival Corp., No. 1:24-cv-24472, 2025 U.S. Dist. LEXIS 161585 (S.D. Fla. Aug. 20, 2025) (Gayles).
Brenda Gordon Torian, a passenger on the CARNIVAL LEGEND, was seated at a slot machine in the vessel’s casino when another passenger, Ms. Queen, zipped past her on an electric scooter. The back wheel of Ms. Queen’s scooter caught on a parked scooter and lighting cords, causing the parked scooter and light fixture to fall on Torian. Alleging that the cruise staff served too much alcohol to Ms. Queen and negligently allowed her to drive her scooter around the ship, Torian brought this suit against the cruise line in Florida federal court with counts for 1) “negligent overcrowding and hazardous condition” (direct liability), 2) negligent failure to monitor (vicarious liability), and 3) negligent overserving of alcohol (direct liability). The cruise line moved to dismiss the direct liability claims based on the failure to sufficiently allege notice and the vicarious liability claim for failure to properly allege a claim for vicarious liability. Judge Gayles found a sufficient pleading of notice with respect to the first count, that the layout of the casino, particularly around the casinos, was too narrow to accommodate multiple scooters and that congestion caused her injury (notice coming from congested conditions on multiple occasions with complaints about scooters blocking passageways and driving too fast). However, the allegation in the third count that the crew served Ms. Queen too much alcohol and allowed her to operate the scooter at a high speed lacked detail about the number of drinks that were served or how the cruise line knew Ms. Queen was intoxicated or was driving a scooter. Therefore, Judge Gayles dismissed, without prejudice, the third count. As to the vicarious liability count, Judge Gayles agreed with the cruise line that the plaintiff did not plead a claim for vicarious liability by asserting that the cruise line was liable for the actions/inactions of the crew in failing to intervene or control the area when they saw Ms. Queen driving her scooter at a high rate of speed, allowing the cords to be tangled, failing to secure the cords, and failing to warn or direct Ms. Queens to operate her scooter elsewhere. Judge Gayles explained that Torian failed to identify a crewmember, specifically or otherwise, whose negligence occurred within the scope of employment. Therefore, he dismissed the second count without prejudice.
Injured seaman’s damages for pain and suffering are recoverable as pecuniary losses in claims for Jones Act negligence and unseaworthiness, and the recoverable damages include physical, emotional, and mental pain and suffering; Hudson v. Diamond Offshore Management Co., No. 2:24-cv-1240, 2025 U.S. Dist. LEXIS 162343 (E.D. La. August 21, 2025) (Milazzo).
Olen Hudson, an employee of Diamond Offshore Management Co., was injured on the M/V OCEAN BLACKHORNET when a wooden platform onto which he was stepping broke from underneath him. Hudson brought suit against Diamond Offshore in federal court in Louisiana as a seaman under the Jones Act and general maritime law, and Diamond Offshore moved for partial summary judgment on Hudson’s claims for denial of maintenance and cure, enhanced damages stemming from the alleged denial of maintenance and cure, and non-pecuniary damages on the Jones Act negligence and unseaworthiness counts. With respect to the claims for denial of maintenance and cure and enhanced damages from failing to provide maintenance and cure, Diamond Offshore argued that it had fully paid maintenance and cure and there was no outstanding obligation. Hudson did not dispute that there was no outstanding amount owed; however, he argued that the dismissal should be without prejudice because there could be a future dispute. Judge Milazzo explained that a seaman may bring multiple suits for maintenance and cure, so the dismissal would not bar him from bringing another suit for maintenance and cure if a dispute arose in the future. Therefore, she dismissed the maintenance and cure claims with prejudice. Turning to the issue as to the damages recoverable on the claims for Jones Act negligence and unseaworthiness, Judge Milazzo distinguished the claims for pain and suffering, which are recoverable, and the claims for loss of enjoyment of life, mental anguish/emotional pain and suffering, loss of consortium, and punitive damages, which are not recoverable. Consequently, she dismissed with prejudice the claims for non-physical injuries, including past, present, and future mental and emotional pain and suffering and any other non-pecuniary damages. See August 2025 Update.
Hudson moved to alter the judgment with respect to the dismissal of his damage claims for mental and emotional pain and suffering. Judge Milazzo differentiated the parties in a seaman’s claim with respect to the right to seek damages for mental anguish. She explained that mental anguish and emotional suffering have been deemed “nonpecuniary” when it is sought by the family members of deceased seaman in a wrongful death action based on Jones Act negligence or unseaworthiness. However, when the seaman is suing for personal injury, she stated that damages for pain and suffering “are properly categorized as pecuniary damages,” and the award for pain and suffering “may include a sum for mental anguish and physical discomfort, and for the mental and physical effects of the injury on the plaintiff’s ability to engage in those activities which normally contribute to the enjoyment of life.” Accordingly, Judge Milazzo concluded that Hudson’s emotional and mental pain and suffering claims were pecuniary, and he could recover regardless of whether his pain and suffering was “physical, emotion, or mental.”
Passenger’s pleading res ipsa loquitur did not obviate the requirement that he establish that the cruise line had notice of the piece of glass in the quesadilla served to him in a restaurant on the ship, resulting in summary judgment in favor of the cruise line; Cunningham v. Carnival Cruise Line, No. 1:24-cv-23143, 2025 U.S. Dist. LEXIS 162504 (S.D. Fla. Aug. 21, 2025) (Bloom).
Maurice D. Cunningham, a passenger on the CARNIVAL VENEZIA, claims that he swallowed glass in his chicken quesadilla while eating in the Canal Grande restaurant on the vessel. Cunningham brought this suit against the cruise line in federal court in Florida, and the cruise line moved for summary judgment for failure to establish notice of the dangerous condition or causation. Cunningham had no evidence that any crewmembers knew of the glass in his food before the incident, and there was no evidence that others found glass in their food at the Canal Grande restaurant or any restaurant on of the cruise line’s vessels. Cunningham responded that he was entitled to an inference of negligence based on res ipsa loquitur, but the cruise line argued that application of res ipsa loquitur did not obviate the obligation to provide notice (and that the doctrine was inapplicable in this case). Judge Bloom agreed that Cunningham had not established notice, and she then addressed whether res ipsa loquitur applied and obviated the need to establish notice. She noted that the Eleventh Circuit had considered whether a passenger could survive summary judgment without evidence of notice by invoking res ipsa loquitur. The Eleventh Circuit reasoned that the doctrine only allows an inference that the defendant breached its duty but did not establish that the defendant owed a duty in the first place. In order to establish there was a duty, the passenger had to establish that the cruise line was on notice of a dangerous condition. Thus, the assertion of res ipsa loquitur did not eliminate the need to prove that the cruise line had notice that glass could be in Cunningham’s quesadilla. The absence of notice was fatal to the suit, and Judge Bloom granted summary judgment to the cruise line. Cunningham filed a notice of appeal to the Eleventh Circuit on August 29, 2025.
Seaman’s allegation that he was employed by the defendant and that the defendant was the owner, operator, or manager of the vessel was sufficient to plead claims under the Jones Act and general maritime law; In re D&S Marine Service, LLC, No. 4:24-cv-3575, 2025 U.S. Dist. LEXIS 163994 (S.D. Tex. August 22, 2025) (Bennett).
Javen Lott injured his leg while working as a crewmember on the M/V BRIANNA ELIZABETH. Lott filed a Jones Act suit in state court in Harris County, Texas against D&S Marine Service and D&S Marine Management, and the defendants filed answers in the state suit and brought this limitation action in federal court in Texas. Lot filed two sets of answers and claims in the limitation action, but both named D&S Marine Management and neither named D&S Marine Service. D&S Marine Management answered both claims, noting in a footnote that Lott had filed two identical claims against D&S Marine Management. After the deadline to file claims passed, the two petitioners filed motions for entry of default. D&S Marine Management requested a default against all claimants except Lott, and D&S Marine Service requested a default against all potential claimants, including Lott. Lott sought leave to file a late claim against D&S Marine Service or to amend his claims against D&S Marine Management to add D&S Marine Service. D&S Marine Service argued that negligence of counsel in failing to timely present a claim is not good cause to permit a late claim, but Magistrate Judge Bryan held that Lott had not wholly failed to file a claim. This was a scrivener’s error by naming the same entity in two claims. D&S Marine Service pointed out that Lott’s counsel was charged with knowledge of the statement in the footnote that two pleadings had been filed against D&S Marine Management, but Magistrate Judge Bryan did not believe that notice from D&S Marine Management was sufficient to negate good cause, particularly when counsel for Lott immediately sought to correct the error after the motion for default. D&S Marine Service also cited cases in which Lott’s counsel represented parties who were denied leave to file a late claim, but Magistrate Judge Bryan held that the decisions in those cases were distinguishable. As there was no prejudice, Magistrate Judge Bryan held that the equitable result was to permit Lott to correct his scrivener’s error by filing a claim against D&S Marine Service (she also held that an amendment to the previously filed claim to change D&S Marine Management to D&S Marine Service would relate back to its timely filing). Accordingly, Magistrate Judge Bryan recommended that Lott be allowed to file his claim against D&S Marine Service. See May 2025 Update.
Judge Bennett noted that the court has discretion to permit the late filing of a claim and that the standard in evaluating the request is “forgiving and equitable.” He concluded that all of the factors to be considered supported permitting the claim: “Considering Lott’s prompt Motion for Leave, his demonstrated intent to assert a claim against [D&S Marine Service], and the absence of prejudice to [D&S Marine Service],” Judge Bennett agreed with Judge Bryan that “default against Lott is not warranted under these circumstances.”
D&S Marine Management filed a motion to dismiss for failure to state a claim, arguing that Lott could not allege claims under the Jones Act or for maintenance and cure because he did not plead that D&S Marine Management was Lott’s employer, and that he could not assert an unseaworthiness claim because he did not allege that D&S Marine Management was the owner or operator of the vessel. D&S Marine Management first claimed that D&S Marine Service had admitted that it was Lott’s employer, but Magistrate Judge Bryan responded that the Fifth Circuit allows a seaman to have more than one Jones Act employer. Additionally, D&S Marine Management argued that Lott’s allegation with respect to employment by D&S Marine Management was conclusory; however, Magistrate Judge Bryan held that the allegation that Lott was employed by D&S Marine Management on the vessel was sufficient to survive a motion to dismiss. Similarly, Lott’s allegation that the vessel was owned, operated or managed by D&S Marine Management and at all times was unseaworthy was sufficient to state a claim for unseaworthiness. Therefore, Magistrate Judge Bryan recommended that the motion to dismiss be denied.
Lott also argued that the limitation stay should be lifted based on the single-claimant exception, submitting stipulations to protect the petitioners’ rights under the Limitation Act. The petitioners argued that it was premature to dissolve the injunction with the pending motions with respect to the late claim and with respect to the sufficiency of the allegations of Jones Act and maritime claims. But those objections were resolved with the orders of Judge Bennett and Magistrate Judge Bryan on the late filing and the motion to dismiss. The petitioners argued that Lott’s stipulations were insufficient because he did not personally sign them, citing the requirement from the Fifth Circuit that all claimants must agree to the stipulations. Magistrate Judge Bryan noted that the Fifth Circuit did not say that the claimants must personally sign the stipulations, only that they must agree to them, and that other courts had approved stipulations that were signed by counsel. Nonetheless, Lott attached a signed copy of the stipulations to his Reply, and Magistrate Judge Bryan lifted the stay and abated the limitation See August 2025 Update.
D&S Marine Management objected to Magistrate Judge Bryan’s recommendations with respect to the pleading of the claims for Jones Act negligence, unseaworthiness and maintenance and cure, and Judge Bennett adopted the recommendations in their entirety. Judge Bennett agreed that Lott stated a claim under the Jones Act, specifically rejecting the argument that challenged the pleading of the Jones Act against multiple employers (“It is possible for a seaman to have more than one Jones Act employer.”). The same analysis was applicable to the pleading of the maintenance and cure claim. Finally, Judge Bennett agreed that the pleading of unseaworthiness was sufficient (Lott “was employed by [D&S Marine Management] on the M/V BRIANNA ELIZABETH which was owned, operated and/or managed by [D&S Marine Management]” and “[a]t all relevant times, [D&S Marine Management’s] vessel was unseaworthy”).
Citation to a document previously produced in discovery and failure of a party’s counsel to convey a settlement offer were not grounds to overturn the judgment rendered in favor of a ship repairer against the beneficial owner of a ship; Naval Logistic, Inc. v. M/V FAMILY TIME, No. 1:23-cv-22379, 2025 U.S. Dist. LEXIS 164021 (S.D. Fla. Aug. 22, 2025) (Scola).
Naval Logistic (d/b/a Middle Point Marina) [the case was docketed in the Eleventh Circuit with the name “Naval Logistics” based on the notice of appeal filed by Vilenchik and the M/V FAMILY TIME] brought this action in federal court in Florida on June 27, 2023 to enforce a maritime lien for repairs to the vessel M/V FAMILY TIME, owned by Commercial Holdings Group, whose principal is Andrew Vilenchik. The dispute centered on whether the vessel’s condition was worse than what was disclosed, necessitating additional repairs. The vessel was arrested on September 7, 2023, and Middle Point Marina was appointed substitute custodian. Vilenchik appeared and sought reconsideration of the appointment of the marina as substitute custodian (and return of custody of the vessel to the U.S. Marshal), arguing that the marina had caused damage to the vessel and was not an appropriate custodian. Judge Scola noted that the courts routinely appoint substitute custodians on an ex parte basis based on allegations that the custodian has experience caring for vessels and acting as a substitute custodian. In this case the marina made the proper allegations and provided the required indemnification. Judge Scola was not persuaded that the owner’s concerns for the fate of its vessel in the marina’s hands were well-founded, as the marina had the incentive to preserve the vessel to protect its own recovery. Therefore, he declined to reconsider his order appointing the marina as substitute custodian. See December 2023 Update.
On January 9, 2024, Middle Point Marina filed a motion for an interlocutory sale of the vessel, arguing that the costs of storage and maintenance were disproportionate to the value of the vessel and that the owner had unreasonably delayed in securing the release of the vessel. The marina stated that the vessel was incurring storage charges of $135 per day, and the amount that had accrued by February 2, 2024 was $23,704.79, excluding the salvage claim for saving the vessel from a maritime peril. The marina argued that two of the three grounds for an interlocutory sale under Rule E(9) were satisfied because almost six months had passed since the arrest on September 7, 2023 (longer than the four months usually considered to be sufficient) and because the expenses were disproportionate to the value of the vessel (estimated to have a value between $50,000 and $99,000). The owner did not offer an explanation for the delay, and Judge Scola held that the sale was warranted by the unreasonable delay. Although one of the conditions in Rule E(9) was sufficient, Judge Scola also addressed the argument that the expenses were disproportionate. The owner disputed the marina’s evidence, but it did not argue that the vessel was worth more than $100,000. Weighing the cost of storage against the value of the vessel, even at the high range of the marina’s estimate, Judge Scola concluded that an interlocutory sale was justified. Finally, the owner argued that the interlocutory sale would prejudice the counterclaim that it recently sought to file. Judge Scola responded that the interlocutory sale was merely a substitution of the proceeds of sale for the vessel and would not prejudice the counterclaim. Therefore, Judge Scola ordered the interlocutory sale of the vessel. See April 2024 Update.
The parties then filed cross-motions for summary judgment on the merits. Middle Point Marina argued that it notified Vilenchik that he would have to remove the vessel after he refused to approve the revised estimates for the cost of additional repairs, and the failure to remove the vessel was a breach of the Agreement for which storage charges were owed. Vilenchik argued that he created a fact question on Middle Point Marina’s contract claim because he submitted an affidavit in which he argued that Middle Point Marina had caused damage to the vessel. Judge Scola answered that the claims made by Vilenchik were not responsive to the claim that Middle Point Marina provided necessaries (storage) for the vessel and that Vilenchik breached the contract by failing to remove the vessel. Vilenchik also argued that Middle Point Marina had not refuted the affirmative defenses raised by Vilenchik in the answer, but Judge Scola responded that the defendant, not the plaintiff, has the burden of proof with respect to affirmative defenses. Therefore, Judge Scola granted Middle Point Marina’s motion for summary judgment, but he deferred ruling on the amount of damages, costs, and attorney fees until the conclusion of the case. Vilenchik moved for summary judgment that he was not individually liable as the principal of the vessel owner, Commercial Holdings Group. However, Judge Scola noted that Vilenchik had signed the Shipyard Agreement and placed his name on the line marked “Owner.” Additionally, Middle Point Marina disputed whether Vilenchik ever mentioned that Commercial Holdings Group was the owner. Therefore, Judge Scola denied Vilenchik’s motion. See September 2024 Update.
Vilenchik moved for reconsideration on the granting of summary judgment to Middle Point Marina, arguing that there was a fact issue whether Vilenchik represented himself as owner of the vessel so as to be a proper defendant. Judge Scola responded that the argument was arguably waived by the failure to raise it in opposition to the motion for summary judgment. However, Judge Scola reiterated that Vilenchik had signed the agreement and placed his name on the line marked “Owner,” which warranted granting of the motion for summary judgment. Although Vilenchik submitted an affidavit disputing ownership of the vessel, Judge Scola did not believe that the affidavit, standing alone, was probative evidence that would rebut the decision on the motion for summary judgment. Therefore, he declined to grant reconsideration. As the parties stipulated to the damages, Judge Scola granted a final judgment in favor of Middle Point Marina for pre-arrest storage fees, custodia legis expenses, arrest costs, and attorney fees and costs. See October 2024 Update.
The defendants filed a notice of appeal to the Eleventh Circuit on September 27, 2024, and the defendants moved for a stay pending appeal. The defendants argued that Middle Point Marina did not need a bond from the defendants because it had the vessel in its possession, having bought the vessel with a value between $50,000 and $99,000 for $100, and the value of the vessel was more than the judgment for $40,437.30. Judge Scola, however, did not believe that the defendants’ argument provided a basis for dispensing with the ordinary requirement for the posting of a bond unless the defendant establishes his ability to satisfy the judgment and maintain that degree of solvency during the appeal. Therefore, he addressed the amount that should be required for the bond. Middle Point Marina argued that the bond should be at least $275,000, claiming that attorney fees and costs for the appeal would be at least $100,000, but Judge Scola noted the local rule that security to stay execution should be in the amount of 110% of the judgment. As the defendants offered a bond of 125%, Judge Scola agreed to stay execution of judgment (and post-judgment discovery) upon the posting of a bond of $50,535.38 (rejecting the addition of conditions, such as the requirement that the defendants not dissipate assets, as the bond was sufficient). Judge Scola also rejected Middle Point Marina’s motion for reconsideration in which Middle Point Marina asserted that the bond should include the attorney fees it was seeking, claiming that $94,669.61 was uncontested and that the fees on appeal should also be included. As Judge Scola had previously declined to include attorney fees in the bond, he denied the request for reconsideration. See February 2025 Update.
The Eleventh Circuit succinctly summarized the issues in the appeal. “When a marina furnishes services to a vessel—dockage, inspections, or repairs—and the vessel’s owner fails to pay or retrieve the vessel, the law affords a straightforward solution. The marina may assert a maritime lien, arrest the vessel, and, if necessary, seek judicial approval to sell it. This case follows that path.” In this case, the marina performed services for the vessel, received no payment, and “turned to the courts for recourse.” Judge Scola authorized the marina to serve as custodian, approved the sale so as to mitigate continued charges, and granted summary judgment to enforce the lien. The Eleventh Circuit affirmed all three rulings. The appellate court first held that the marina established that it had a maritime lien for dockage and inspection services, which are “clearly ‘necessaries.’” Although Vilenchik argued that the marina damaged his vessel, the Eleventh Circuit answered that this claim would not invalidate the lien and could be pursued as a counterclaim or in a separate action. The vessel’s request to file a counterclaim was denied by Judge Scola as untimely, and the appellate court found no abuse of discretion in that decision. The Eleventh Circuit also rejected Vilenchik’s argument that he was not the vessel’s true owner and did not authorize the services, responding that Vilenchik delivered the vessel to the marina, signed the Shipyard Agreement identifying himself as the owner, and remained the sole point of contract throughout the dealings, which was sufficient to establish his apparent authority to create the lien. Vilenchik also objected to the appointment of the marina as substitute custodian. The appellate court noted that, in order to qualify, the “proposed custodian must accept full responsibility, carry appropriate insurance, and agree to hold the United States and the Marshal harmless from any liability arising during the custody.” The marina satisfied those conditions, and Vilenchik did not identify any specific risk, conflict, or inadequacy in the marina’s qualifications. Therefore, there was no error in the appointment of the marina as substitute custodian. Finally, the Eleventh Circuit addressed Judge Scola’s decision to order an interlocutory sale, agreeing that all of the factors set forth in Rule E(9) were satisfied. The marina had incurred over $25,000 in storage fees, and Vilenchik had not posted a bond or sought to recover the vessel. The appellate court explained: “Courts are not required to let storage costs accumulate indefinitely in the hope that the owner might eventually act.” The Eleventh Circuit concluded: “Federal maritime law provides a clear and orderly process for enforcing liens and resolving disputes involving vessels. The District Court followed that process.” As each decision of Judge Scola “was grounded in the record and consistent with established legal principles,” the court of appeals affirmed the decisions. See July 2025 Update
Back in the district court, Middle Point Marina requested an award of attorney fees in the amount of $125,952.50 and costs in the amount of $2,494.61, based on the provision in the original agreement that Middle Point Marina was entitled to reasonable attorney fees from the owner if it engaged an attorney to collect any unpaid invoices. Middle Point Marina sought fees at the rates of $450 and $425 per hour for partners and $300 per hour for associates, and Magistrate Judge Lett agreed that the rates were reasonable. The defendants disputed 80.1 hours of time as excessive, vague, and duplicative, and Magistrate Judge Lett agreed to a “modest flat rate cut” of approximately 20 hours of associate time and 10 hours of partner time as excessive or vague. Magistrate Judge Lett denied the request for a reduction based on duplicative entries, agreeing with Middle Point Marina that “it is commonplace for associates to have their work reviewed by senior attorneys, and multiple attorneys working on a particular matter does not strike the Court as excessive in billing, particularly when only accounting for fewer than six total hours of billing between two attorneys.” Therefore, Magistrate Judge Lett recommended fees be awarded of $115,702.50 plus costs/expenses of $2,494.61 (a total of $118,197.11). The defendants objected, and Judge Scola agreed that having “multiple attorneys billing for the same matter is not inherently duplicative.” Although the defendants emphasized two particular time entries, Judge Scola agreed with the across-the-board cut. Finally, after Vilenchik’s counsel withdrew, Vilenchik filed an untimely objection. Judge Scola noted that the objections failed on the merits. He rejected the argument that it was the improper arrest of the vessel that “created a self-inflicted dispute,” citing the affirmance of the arrest and sale by the Eleventh Circuit. Judge Scola also rejected the argument that Middle Point Marina’s counsel improperly billed for post-judgment collection and discovery abuse, stating that Middle Point Marina was only seeking proper post-judgment information. Accordingly, Judge Scola awarded fees and expenses in the amount of $118,197.11. See August 2025 Update.
Vilenchik, now appearing pro se, asked the court for relief under Rule 60(b) from the judgment rendered against him in the amount of $40,428.30 plus attorney fees and costs in the amount of $118,197.11, arguing that Middle Point Marina concealed evidence, fraudulently misstated its expenses, and improperly inflated its attorney fees. Vilenchik also asserted that the arrest was improper because the court did not have in rem jurisdiction over the vessel. Vilenchik complained that Middle Point Marina suppressed the credit card authorization for the work that would defeat in rem jurisdiction over the vessel. However, the marina produced the authorization in discovery so the evidence could not be “newly discovered.” Vilenchik also argued that his attorney failed to notify him of a settlement offer, but that was not relevant to the judgment that was entered and was a matter between Vilenchik and his attorney. There was a discrepancy regarding the Marshal’s refund of $637.50, and Judge Scola advised the parties to prepare a joint motion to correct the discrepancy in a proposed amended final judgment.
Independent contractor that was in charge of the helideck on an offshore platform owed a duty to the employee of another contractor who was injured while chocking a helicopter on the helideck; Sessums v. Shell USA, Inc., No. 2:24-cv-104, 2025 U.S. Dist. LEXIS 164159 (E.D. La. Aug. 25, 2025) (North).
Jeremy Sessums, an employee of Helmerich & Payne, was injured while working as a roustabout on an offshore platform located on the outer Continental Shelf of the Gulf of America off the coast of Louisiana. Shell Offshore Inc., which operated the platform for its owner, Shell Gas Pipeline Co., contracted with Helmerich & Payne to perform oil and gas drilling operations on the platform. The platform was used to service a pipeline of Shell USA, and Doye Sepulvado was the company man for Shell USA. Sessums was ordered to place chocks on the wheels of a helicopter by contractor Danos, and Sessums was injured in the process. Sessums brought this suit in federal court against all of the mentioned parties except his employer, Helmerich & Payne (as his exclusive remedy is the LHWCA). Shell USA and Sepulvado moved to dismiss the claims against them, and Judge Lemelle applied Louisiana law as the law of the adjacent state under the Outer Continental Shelf Lands Act. Judge Lemelle agreed that Sessums had not established that Sepulvado owed a duty to Sessums, holding that the allegation that he had the authority and duty to monitor the operations on the platform and pipeline and to stop unsafe practices was insufficient. Aside from being conclusory, the allegations did not assert that Sepulvado affirmatively assumed a workplace safety duty or created the helicopter hazard himself. And Sepulvado was removed from the incident because he was the company man of the pipeline owner, not the platform operator. Similarly, Shell USA was the owner of 320 miles of offshore pipeline and supervised pipeline projects. Sessums’ duties on the platform did not implicate any duty with respect to the operation of the pipeline. Accordingly, Judge Lemelle dismissed the claims against Sepulvado and Shell USA. See July 24, 2024 Update.
Shell Offshore, operator of the platform, then moved for summary judgment, arguing that it did not exercise operational control over Helmerich & Payne or supervise the work leading to Sessums’ injury. Shell Offshore employees were not present at the safety meeting, did not order Sessums to place the chocks on the wheels, and did not give the order to work with respect to the helicopter. Sessums did not speak with any Shell Offshore employee from the time he began work until the time of his injury. Sessums responded with a report of his expert, Gregg Perkin, suggesting that Shell Offshore had a duty to provide its contractors with a workplace free of recognized hazards and that operations on the platform were being controlled by Shell Offshore. Shell Offshore argued that the report did not indicate that Shell Offshore had exercised operational control over Sessum’s work with the chocks, and Magistrate Judge North agreed, noting that the report was conclusory and failed to point to any “how to” instructions or express or implied order on the part of Shell Offshore. Perkin’s citation to Shell Offshore’s failure to conduct safety meetings and lack of communication with Helmerich & Payne only demonstrated that control was in the hands of Helmerich & Payne, not Shell Offshore. In the absence of any evidence of its involvement, Shell Offshore was entitled to summary judgment on the issue of operational control. That determination was also fatal to the argument that Shell Offshore could be liable for its own independent negligence as it could not have created the hazard when it did not control the operation. Finally, Magistrate Judge North addressed Sessum’s argument that Shell Offshore was liable under a theory of premises liability. As Sessum testified that the chocks were not defective, he could not establish a claim for premises liability, and Magistrate Judge North dismissed the claim. Accordingly, Magistrate Judge North granted summary judgment to Shell Offshore, dismissing the claims against it with prejudice. See June 2025 Update.
The remaining defendant, Danos, moved for summary judgment, arguing that it did not owe a duty to Sessums because the Danos employee who was present for the incident, Taylor Thibodaux, had no supervisory authority over Sessums and was not overseeing or managing his work (citing Sessums’ testimony that the instruction to assist with the helicopter operations came from Jacob Keyes, an employee of Helmerich & Payne. Sessums argued that there was a “special relationship” between Thibodaux and Sessums because Thibodaux was in charge of activities on the helideck, and that Sessums was conducting helideck operations when he chocked and un-chocked the helicopter. Sessums also pointed out that Thibodaux gave him instruction, telling him to “go, go, go” and grabbed him by his clothes. Magistrate Judge North concluded that there was a genuine issue of fact whether Thibodaux had supervisory authority over Sessums, differentiating the case from the situation in which a third-party contractor was just watching operations, rather than overseeing operations, even though it was Helmerich & Payne that ordered Sessums to the helideck. Accordingly, Magistrate Judge North denied summary judgment to Danos, finding sufficient evidence of a duty to Sessums.
Policy on yacht was voidable based on owner’s violation of uberrimae fidei for failing to disclose information that was not specifically requested on the insurance application; Aspen American Insurance Co. v. Luquis-Guadalupe, No. 3:24-cv-1277, 2025 U.S. Dist. LEXIS 169414 (D.P.R. Aug. 28, 2025) (Antongiorgi-Jordan).
Rafael Luquis-Guadalupe owned the 28-foot yacht DESCALZA. A fire broke out on the vessel on May 22, 2024 and spread to nearby boats and a dock. Aspen American Insurance, which insured the vessel, denied coverage and filed this action in federal court in Puerto Rico, seeking a declaratory judgment that the policy was void under the doctrine of uberrimae fidei and based on breach of the warranty of truthfulness. The application completed by Luquis-Guadalupe’s broker, Eduardo Pagan, contained sections for previously owned vessels and previous losses. The completed application listed several vessels, but it did not include a Yamaha jet ski that Luquis-Guadalupe had owned. It also omitted the total loss of a vessel in a car accident that occurred while Luquis-Guadalupe was towing the vessel. Aspen American issued a policy for the vessel in 2018, and it renewed the policy in subsequent years with the question posed changing to ask whether the applicant had any accidents or losses while operating any watercraft. Luquis-Guadalupe left that section blank. Aspen American moved for summary judgment, and Judge Antongiorgi-Jordan explained that the doctrine of uberrimae fidei requires the insured “to make full disclosure of all material facts even where the insurer makes no inquiry concerning such facts.” Judge Antongiorgi-Jordan noted that “materiality” is a mixed question of fact and law, but that persuasive authorities favor a broad interpretation of materiality. She reasoned that “omissions regarding prior vessel ownership and prior loss history deprive the insurer [of] a crucial ‘opportunity to investigate and inquire about prior losses’ in search of information that would inform the calculation of risk.” Judge Antongiorgi-Jordan concluded that the two omissions from the Application, the prior total loss and ownership of the jet ski, “together establish ‘materiality’ as a matter of law.” Luquis-Guadalupe argued that the later applications were ambiguous because they only inquired about losses while operating a vessel; however, Judge Antongiorgi-Jordan answered that the doctrine of uberrimae fidei “strictly requires the insured to disclose all material information, regardless of whether that information is affirmatively sought by the insurer.” Finally, Luquis-Guadalupe argued that Aspen American waived its uberrimae fidei defense by repeatedly renewing the policy. Judge Antongiorgi-Jordan responded that the argument might have merit if Aspen American renewed the policy with notice of the withheld information, but it only became aware of the information after the loss. Accordingly, Judge Antongiorgi-Jordan granted summary judgment that the policy was voidable under the doctrine of uberrimae fidei.
Judge declined to decide ferry operator’s time-limitation defense to a passenger’s injury suit on a motion to dismiss when the ticket was not referenced in the complaint; Muhssen v. Key West Express, LLC, No. 2:25-cv-609, 2025 U.S. Dist. LEXIS 169810 (M.D. Fla. Sept. 2, 2025 (Chappell).
Aline Nuhssen, a passenger on the Key West Express ferry, was injured when she fell to the deck of the ferry in rough seas during a trip from Fort Myers to Key West, Florida. Muhssen brought this suit in federal court in Florida against the ferry operator for negligent operation of the ferry and negligent failure to warn. The ferry operator moved to dismiss the claim based on the one-year limitation period in the ticket for passage. Alternatively, as the complaint did not reference the ticket, the ferry operator requested the court treat the motion as a motion for summary judgment. Judge Chappell declined to convert the motion to dismiss into a motion for summary judgment, believing it would be inefficient. Judge Chappell noted that Muhssen had disputed that the shortened limitation period had been reasonably communicated to her, and she believed that it was reasonable to conclude that there may be further factual disputes. Therefore, Judge Chappell denied the motion to dismiss, without prejudice to the ferry operator’s right to file a motion for summary judgment.
Magistrate Judge rejected all claims arising from disputes over the purchase, sale, storage, and transportation of boats and cars; World Express & Connection, Inc. v. Crocus Investments, LLC, No. 2:15-cv-8126, 2025 U.S. Dist. LEXIS 170078 (D.N.J. Sept. 2, 2025) (Hammer).
Marine Transport is an international shipping company that provides freight forwarding and logistics services for ocean freight forwarding, air freight forwarding, cargo warehousing, customs clearance, and cargo consolidation. Marine Transport used World Express & Connection, an international freight forwarding company, as its container yard and freight station. World Express eventually closed, and its assets were sold to Marine Transport. This litigation involves a dispute related to the shipping, export, repair, and resale of three boats and two cars. Alexander Safonov, owner of the Crocus Entities, had a business relationship with Aleksandr Solovyev of World Express, in which the Crocus Entities purchased vessels. World Express stored vessels at no charge and performed repair on vehicles and sold them. Two cars went missing in Dubai, and World Express began issuing invoices to the Crocus Entities for storage. World Express brought suit against Crocus Investments in federal court in New Jersey for storage fees, and Crocus Investments counter-claimed for fraud and civil conspiracy. Magistrate Judge Hammer conducted a bench trial on the claims and entered findings and conclusions that rejected the claims of both parties, dismissing all of the claims with prejudice.
Magistrate Judge did not recommend lifting the stay in a limitation action so that the State could proceed with a civil enforcement action in the state traffic tribunal claiming violations of state navigation regulations; In re Marcotte, No. 1:25-cv-173, 2025 U.S. Dist. LEXIS 170152 (D.R.I. Sept. 2, 2025) (Sullivan).
Brenda Marcotte and Ryan Marcotte allege that they are owners of the vessel M/Y OHANA, which was involved in a collision with a Seaswirl Striper boat in state waters of Narragansett Bay, Massachusetts. The Seaswirl boat was operated by Gary Narkiewicz, and Gerard Narkiewicz was an invitee on the Seaswirl. Three parties initiated proceedings in state court against the Marcottes. Gary and Gerard Narkiewicz brought suit in Rhode Island Superior Court, and the Rhode Island Department of Environmental Management (RIDEM) brought a civil enforcement action in the Rhode Island Traffic Tribunal (alleging violations of state navigation regulations). The Marcottes then brought this action in Rhode Island federal court, seeking exoneration/limitation of liability. The Narkiewiczs and RIDEM filed claims in the limitation action, and RIDEM moved to lift the stay in the limitation action so that it could pursue the alleged violations of state navigation regulations in the traffic tribunal. Magistrate Judge Sullivan reasoned that the decision whether to lift or modify the stay was “based on considerations such as whether the lifting of the stay would frustrate the purpose of the Limitation of Liability Act, would create the risk of inconsistent judgments with respect to core issues pertaining to the question of whether petitioners are entitled to limitation of liability, and would be contrary to the interests of judicial economy and fairness (citing the decision of Judge Bredar of the United States District Court for the District of Maryland in the DALI limitation action in which he declined to lift the stay to allow the State to pursue claims outside the limitation action). Magistrate Judge Sullivan explained that the fact issue to be determined in the traffic proceedings—“whether Petitioner Ryan Marcotte violated state navigational rules during the voyage that ended with the collision—is inextricably intertwined with the factual issues that will impact whether the Court will grant Petitioners’ prayer for exoneration or limited liability.” Thus, “permitting the RIDEM matter to proceed would undermine the exclusive jurisdiction of the admiralty Court; interfere with concursus; expose Petitioners to the risk of inconsistent judgments; and adversely impact the claim of Petitioner Ryan Marcotte for limited liability in the admiralty Court.” Comparing those considerations against the lack of prejudice to RIDEM that would result from waiting to proceed until after the decision on limitation/exoneration, Magistrate Judge Sullivan recommended that the motion to lift the stay be denied (RIDEM did not object to the recommendation).
Passenger improperly commingled theories in suit against the cruise line, even though she separated the theories into four counts, and was required to properly replead each of her claims (negligent maintenance, failure to warn, negligent training, and negligent design); Veloz v. Carnival Corp., No. 1:25-cv-21716, 2025 U.S. Dist. LEXIS 170336 (S.D. Fla. Sept. 2, 2025) (Moore).
Daelynne Veloz, a passenger on the CARNIVAL MAGIC, slipped and fell on wine that another passenger spilled at the nightclub on the vessel. Veloz brought this suit against the cruise line in Florida federal court, asserting that the cruise line was negligent for failing to have an anti-slip mat or warning. The cruise line moved to dismiss the complaint for comingling all of the negligence theories into one count and for failing to adequately plead notice. Judge Moore agreed and dismissed the complaint without prejudice. He explained that Veloz had alleged negligence in a single count for failing to inspect and failing to maintain the area, failing to warn, failing to train and instruct employees, failing to develop and use proper safety procedures, and negligently designing the area. He reasoned that each distinct theory must be asserted independently and with corresponding factual allegations to support it. As Veloz would have to amend her complaint, Judge Moore also addressed the adequacy of notice. Veloz argued that she did not have to allege notice because she claimed that the cruise line created, participated in, or approved the design of the dangerous condition. Judge Moore agreed that notice to the shipowner is not required when the passenger is seeking to hold the cruise line vicariously liable for the negligence of its crew. However, Veloz “confusingly lumps various theories of liability into the single count that is labeled as a direct liability negligence claim.” As such, she was required to establish actual or constructive notice of the cruise line of the risk-creating condition. See September 2025 Update.
Veloz’s amended complaint brought separate counts for negligent maintenance, failure to warn, negligent training, and negligent design. The cruise line moved to dismiss the complaint for continuing to comingle theories, even though they were brought in separate counts, and for failing to sufficiently plead notice. Judge Moore agreed that Veloz had not sufficiently separated the allegations. He cited examples such as the second count (failure to warn), which stated that the cruise line failed to design, inspect, maintain, upkeep and/or clean an area. Judge Moore explained that the allegation was not a factual allegation that would give rise to a claim for failure to warn “as nothing therein relates to a duty or failure to warn.” He cautioned that passenger must “exclude allegations that are irrelevant to the specific theory of negligence asserted.” Judge Moore recognized that Veloz “appears to have attempted to remedy the deficiencies this Court previously explained, albeit insufficiently.” Therefore, he gave Veloz “one last opportunity to file a complaint that is not a shotgun pleading.” As he gave Veloz leave to file one more complaint, Judge Moore addressed the sufficiency of the notice allegations. For the counts involving negligent maintenance and failure to warn with respect to the spilled liquid, Veloz asserted that the cruise line was on notice through its employees in the area who were aware of increased passenger traffic with an increased susceptibility to spills. Judge Moore answered that the allegations were insufficient as they did not provide specifics as to how a crewmember would have noticed the liquid or as to the length of time that the condition was present. With respect to the failure to train, Veloz failed to allege an actual training program that could have been conducted negligently. Finally, with respect to the count for negligent design, Veloz argued that she did not have to plead notice of the hazardous condition when the cruise line created or approved the design. Judge Moore answered that in order to avoid proving notice, the passenger must allege that the cruise line actually created, participated in, or approved the design. However, the count did not contain any specific allegations, only conclusory assertions. Therefore, all four counts were inadequate, and Veloz was given one final opportunity to correctly plead the claims.
Shipowner’s recovery against repairer was limited to $10,000.62 by the limitation clause in the Service Repair Order; Constance Joy II, LLC v. Stewart & Stevenson FDDA LLC, No. 4:20-cv-2967, 2025 U.S. Dist. LEXIS 171144 (S.D. Tex. Sept. 3, 2025) (Tipton).
Constance Joy II, LLC, owner of the 125-foot yacht CONSTANCE JOY, needed repair on the yacht’s engines that overheated and eventually failed on a sea trial. The owner hired Stewart & Stevenson, doing business as Florida Detroit Diesel-Allison to service the engines, including removing cooling hoses to access, inspect, and clean the engines’ heat-exchanger plates. During the sea trials, one of the cooling hoses broke loose and sprayed seawater throughout the engine room. Constance Joy II brought this suit against Stewart & Stevenson in state court in Florida, and Stewart & Stevenson removed the case to federal court in Florida (based on original admiralty jurisdiction and diversity) and moved to transfer the case to Texas based on a forum-selection clause in the Service Repair Order. After repairs were completed on the vessel, it was sold for $14.3 million, and it still operates under the name HAPPY D. Judge Tipton conducted a bench trial and concluded that Stewart & Stevenson was negligent for failing to tighten the metal O-ring clamps after reconnecting the hose during the installation of the heat-exchanger plates on the starboard engine. Both sides presented expert testimony on damages. Judge Tipton found that the damages for the repair were $654,850.50 (reduced by $90,000 paid by Stewart & Stevenson) together with $82,243.01 in other necessary expenses. Constance Joy II also sought damages of $1,285,875 in lost charter revenue and $1,930,945 for loss of personal use. As the vessel was never chartered during its ownership by Constance Joy II and never received any offers for its charter, Judge Tipton held that the incident did not result in any loss-of-charter damages. Judge Tipton found that the damages for personal loss of use for the vessel were $1,930,945 based on the charter rates for high season and low season and the amount of personal use the beneficial owner would have had for the vessel. Judge Tipton then addressed the effect of the limitation clause in the Service Repair Order, which disclaimed recovery for incidental, special, exemplary, indirect, or consequential damages, including loss of use, revenues, profits, or other opportunities, and which set for the maximum liability for any claim to the purchase price of the products on which the claim is based. Judge Tipton concluded that the Captain of the yacht, Anthony Nicholls, had apparent authority to sign the Service Repair Order and that Constance Joy II was bound by its terms. As the limitation clause did not fully absolve Stewart & Stevenson of liability and sufficiently provided a deterrent to negligence, Judge Tipton held that the clause was enforceable. Based on the clause, the damages for loss of use were not recoverable, and the repair costs were limited to the value of the contract, $10,000.62. Therefore, Judge Tipton awarded a total of $10,000.62 plus prejudgment interest.
From the state courts
Louisiana appellate court affirmed credibility choice of the trial judge, dismissing passenger’s claim in suit against operator of pontoon boat for negligent operation of vessel that allegedly injured the passenger; Andersen v. Progressive Paloverde Insurance Co., No. 2024 CA 1148, 2024 La. App. Unpub. LEXIS 58 (La. App. 1 Cir. Aug. 1, 2025) (Stromberg).
Tammy Andersen, a passenger on a recreational pontoon boat being operated by Lou Anne Milliman, claims that she was injured when the vessel struck a wake while proceeding at high speed in a no-wake zone in the Tchefuncte River in St. Tammany Parish, Louisiana. Anderson brought this suit against Milliman and her insurer, Progressive Paloverde Insurance Co., in state court in St. Tammany Parish, Louisiana, claiming that Milliman breached her duty to properly operate the vessel by speeding and driving carelessly, ignoring a no-wake zone, having too many passengers on the bow, and overloading the boat. Judge Lobello held a bench trial and found that Andersen failed to prove that Milliman breached a duty of care or that Milliman’s actions caused Andersen’s injuries. Judge Lobello noted that the overwhelming majority of the evidence was conflicting, including the identity of the person operating the boat at the time of the incident. The case was investigated by an officer from the Louisiana Department of Wildlife & Fisheries who did not issue any citation, stating that “due to [the] inconsistency of passenger statements, it is difficult to conclude what exactly took place and how and where the injury occurred.” Judge Lobello also noted the conflicting evidence and made a credibility determination in which he found that “Andersen’s testimony was self-serving and not credible.” Andersen appealed, asserting that there was manifest error based on testimony from some of the passengers. Writing for the Louisiana Court of Appeal, First Circuit, Judge Stromberg easily dismissed Andersen’s argument, reasoning: “Where the factfinder’s determination is based on its decision to credit the testimony of one or more witnesses, that finding can virtually never be manifestly erroneous.” Therefore, the appellate court affirmed the judgment in favor of Milliman.
Kenneth G. Engerrand
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In the boardgame Battleship, players take turns guessing the location of their opponent's ships in an effort to destroy their opponent's fleet and win the game. To be successful in the game, players must carefully pick the shots fired at their opponent's fleet on offense while simultaneously attempting to not reveal how closely their opponent's shots miss the player's ships on defense. In this procurement, the Department of the Navy ("the Navy") has seemingly mastered the defensive skills, but not the offensive skills, of a Battleship player. In evaluating proposals for the maritime surveillance contract at issue here, the Navy utilized vague and conflicting past performance criteria to make an award decision while simultaneously failing to provide any explanation for the decision it made. In other words, in contrast to how a skilled Battleship player carefully picks his shots on offense, the Navy carelessly chose ambiguous words and utilized an unclear past performance rating system in this procurement. Conversely, just as a successful Battleship player conceals how close his opponent is to hitting his ships on defense, the Navy did not reveal any clear rationale for its award decision. While players should abide by the adage "loose lips sink ships" when playing Battleship, an agency should not utilize a lips-sealed approach in documenting its evaluation of the award of a contract, especially when the evaluation criteria on which the agency relies for award are all but clearly stated.
Judge Zachary N. Somers in Advanced Technology Systems Co. v. United States, No. 25-515, 177 Fed Cl. 443 (U.S. Ct. Fed. Claims June 27, 2025).
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© Kenneth G. Engerrand, September 30, 2025; redistribution permitted with proper attribution.
