October 2026 Longshore Maritime Update No. 329
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, 2026 and ending September 30, 2027. The National Average Weekly Wage is $1,081.96. Consequently, the maximum compensation rate for total disability and death for the period beginning October 1, 2026, and extending to September 30, 2027, is $2,163.92, 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, 2026, is $540.98 per week. Cost-of-living adjustments effective on October 1, 2026, are 3.90%.
On May 26, 2026, the Appellate Court of Connecticut rejected the claim of the Connecticut Port Authority that it is entitled to sovereign immunity (asserting that it is an arm of the state) in connection with a suit seeking unjust enrichment brought by a subcontractor that agreed to perform demolition and disposal of mooring dolphins in connection with a construction project known as “Infrastructure Improvements to Connecticut State Pier—New London, CT.” See Blakeslee Arpaia Chapman, Inc. v. Kiewit Infrastructure Co., No. AC 47355, 239 Conn. App. 127, 2026 Conn. App. LEXIS 171 (Conn. App. May 26, 2026) (Cradle).
On June 24, 2026, Judge Lin of the United States District Court for the Western District of Washington certified a class of dockworkers for a class action in their suit against the Pacific Maritime Association (representing over 70 ocean carriers, stevedoring companies, and marine terminal operators on the West Coast), alleging that the PMA violated Washington law by failing to provide sick leave to members of the International Longshore & Warehouse Union. The class is: “All hourly-paid employees who are covered by a Collective Bargaining Agreement between ILWU and PMA and have worked on a PMA Member jobsite located in the State of Washington at any time since May 29, 2021[.]” See Fowler v. Pacific Maritime Association, No. 2:24-cv-974, 2026 U.S. Dist. LEXIS 140396 (W.D. Wash. June 24, 2026).
On July 22, 2026, the Office of Workers’ Compensation Programs, Division of Longshore and Harbor Workers Compensation, issued Notice No. 209 setting forth the 2026 Final Assessment for the Special Fund:
All payments made during calendar year 2025 by insurance carriers and self-insured employers have now been reported. A total of $1,043,492,536 in compensation payments has been reported under the Longshore Act and its three extensions, which are the Defense Base Act, the Outer Continental Shelf Lands Act, and the Non-appropriated Fund Instrumentalities Act. A total of $1,052,037 has been reported under the District of Columbia Compensation Act for compensation and medical payments in cases where the date of injury arose prior to July 26, 1982.
This Office has determined that for calendar year 2026, a total of $82,000,000 is needed for the Special Fund under the Longshore Act and extensions (excluding the D.C. Act) and a total of $4,000,000 is needed for the Special Fund under the District of Columbia Act. Proceeds from the Special Fund assessment [are] used for payments under Sections 8(f), 10(h), and 18(b) plus other payments provided for under Section 44 of the Act.
On September 2, 2026, NOAA Fisheries Assistant Administrator Eugenio Piñeiro Soler announced prioritized agency actions in support of the 2025 Executive Order on Restoring American Seafood Competitiveness (EO 14276). Soler stated that the administration will release “the First Seafood Strategy, a comprehensive, multi-agency initiative” to “elevate domestic seafood production to a priority in matters of national food security and strategic independence.” Highlights of the prioritized agency actions are contained at:
Advancing Agency-Level Reforms to Restore American Seafood Competitiveness | NOAA Fisheries
On September 3, 2026, the Eleventh Circuit addressed the claims of commercial fishers that members of the Gulf of Mexico Fishery Management Counsel were improperly appointed under the Appointments Clause of the Constitution (the fishers challenged a rule promulgated through the Secretary of Commerce that reduced the catch limits for gag grouper, the fishers’ most profitable catch). The Eleventh Circuit agreed that the structure of the council violated the Appointments Clause, but the court declined to set aside the rule. Writing for the Eleventh Circuit, Judge Brasher stated: "Because the secretary exercised the authority to promulgate the regulation independent of any authority of the council, the appointments clause does not justify invalidating the gag grouper rule.” See Russo v. Secretary, U.S. Department of Commerce, No. 26-10171, 2026 U.S. App. LEXIS 27257 (11th Cir. Sept. 3, 2026).
On September 8, 2026, the Third Circuit vacated the approval of the Water Quality Certification issued by the New Jersey Department of Environmental Protection to Transcontinental Gas Pipe Line Co. for its proposed Northeast Supply Enhancement Project that would expand Transco’s existing interstate natural gas pipeline system by constructing a new pipeline segment beneath Raritan Bay. Environmental groups contended that where the new segment crosses New Jersey waters, “its installation would require dredging the bay floor, stirring up sediment containing toxic contaminants.” As a condition of approval by the Federal Energy Regulatory Commission, Transco had to secure approval of a Water Quality Certification under the Clean Water Act, which requires a certification that any discharge into navigable waters will comply with the provisions of the Clean Water Act and state water quality standards (setting forth effluent limitations and monitoring requirements necessary to assure compliance). Reasoning that “material monitoring and response terms remained unresolved” and that no later approval was required before dredging could begin, Judge Roth held that New Jersey acted arbitrarily and capriciously in issuing the Certification. Judge Roth also concluded that, apart from the deferred plans, the decisional documents did not adequately explain the conclusion that Transco’s dredging would comply with New Jersey’s water quality standards. Judge Roth advised that, on remand, the agency was “free to supplement its explanation, require additional submissions or analyses, issue a new or revised certification, or reach a different result.” See Natural Resources Defense Council, Inc. v. New Jersey Department of Environmental Protection, Nos. 26-1252, 26-1253, 2026 U.S. App. LEXIS 27515 (3d Cir. Sept. 8, 2026).
On September 9, 2026, Chief Judge Baker of the United States District Court for the Southern District of Georgia agreed to certify a class of members of International Longshoremen’s Association Local 1475 Clerks and Checkers Union in Savannah (the workers asserted that the Local divided workers into classes in order to favor family and friends of Local leaders, breaching its duty of fair representation to all members because the amount of work in the favored class increased substantially while the work available to the other class declined substantially). See Dodd v. International Longshoremen’s Association Local 1475 Clerks and Checkers Union, Inc., No. 4:23-cv-327, 2026 U.S. Dist. LEXIS 203781 (S.D. Ga. Sept. 9, 2026).
Exclusive, original jurisdiction over prize cases was given to the federal courts in the Judiciary Act of 1789. On September 23, 2026, Chief Judge Crane of the United States District Court for the Southern District of Texas posted the following General Order for Prize Rules and Standing Interrogatories for Prize Proceedings in the Southern District of Texas (covering ports from Brownsville to Houston and Galveston). Chief Judge Crane described the court’s jurisdiction (footnotes omitted):
(a) This Court has exclusive jurisdiction over each Prize and each proceeding for the condemnation of Prize Property brought into the Southern District of Texas.
(b) This Court has venue over each Prize brought into the waters of a consenting cobelligerent, brought into a locality under the control of the armed forces of the United States, or appropriated for use by the United States, if this Court is designated to exercise such jurisdiction by the Attorney General.
(c) This Court has venue over any Prize that is lost, destroyed, or cannot be
brought in for adjudication because of its condition if this Court is designated to exercise such jurisdiction by the Secretary of the Navy.
The court requested comments on the rule with a deadline for comments of October 23, 2026.
On the longshore front . . .
From the federal appellate courts
Fourth Circuit declined to overturn ALJ’s finding of suitable alternative employment based on the ALJ’s inference that the employer’s vocational expert sufficiently considered the claimant’s advanced age and extended absence from the workforce; Young v. Director, OWCP (Huntington Ingalls), No. 24-1299, 2026 U.S. App. LEXIS 16466 (4th Cir. June 8, 2026) (per curiam).
Steven T. Young began working for Newport News Shipbuilding and Dry Dock Co. as a welder in 1977. After several injuries and surgeries, Young was unable to perform his welding work and stopped working for Newport News in 1989. He was employed in alternate employment but has not sought employment since 2015, believing that he lacks the qualifications for available jobs. Beginning in 2000, Young was paid permanent partial disability at the weekly rate of $239.50 (based on a minimum wage-earning capacity). Young’s physician, Dr. Jonathan Partington imposed greater restrictions on Young in 2015, and, citing the increased restrictions, his advancing age, and extended absence from the work force, Young sought a modification of his benefits (claiming that he was entitled to permanent and total disability). Administrative Law Judge Markley found that Young had established a change in condition but concluded that his employer had carried its burden of proving the availability of suitable alternate employment. ALJ Markley credited the testimony of the employer’s vocational expert, Barbara Harvey (from two labor market surveys) that Young was employable in numerous positions, considering his work history, education, physical capabilities, and transferrable skills. Young challenged the findings, arguing that ALJ Markley committed legal errors by failing to account for an essential consideration in the vocational analysis (the restrictions relied upon to support a change of condition for the modification) and in failing to account for other essential vocational considerations (Young’s age and extended absence from the work force). The Benefits Review Board vacated the finding that the employer established suitable alternate employment, stating that the ALJ did not consider whether “Claimant’s age and background make him likely to be hired for any particular position. She limited her consideration to Claimant’s physical restrictions but did not address whether his age and long absence from the work force effects his ability to compete for a job.” On remand, ALJ Markley stated that vocational expert Harvey had considered “the whole individual, including their physical restrictions, medical history, demographics, employment history, and educational history.” Therefore, ALJ Markley was “able to infer that [Harvey] considered Claimant’s age and lack of recent work history in identifying jobs that would be suitable for him as of the dates of her surveys.” ALJ Markley credited 9 of the jobs from the surveys and denied the request for permanent and total disability benefits. Young appealed to the Benefits Review Board, which concluded that ALJ Markley “permissibly found that Ms. Harvey adequately considered Claimant’s age and work history in her testimony and reports.” Young filed this petition for review with the Fourth Circuit, contesting the inference that the vocational expert considered Young’s advanced age and absence from the workforce when compiling her list of suitable alternative employment. Young framed his argument as a “legal challenge,” but the Fourth Circuit agreed with the employer that this was merely a challenge to the adequacy of ALJ Markley’s fact finding. After reviewing the record, the Fourth Circuit concluded that ALJ Markley’s inference was supported by substantial evidence. The court explained: “Harvey testified that, when preparing labor market surveys, she generally accounts for, among other factors, an individual’s demographic information and employment history. And there is no evidence that Harvey deviated from her usual practice here. She learned about Young’s extended absence from the workforce during her interview with him and appropriately limited him to entry-level, unskilled or semiskilled positions. Moreover, Harvey’s testimony about the robust job market supports the inference that Young’s advanced age and extended absence from the workforce were not as limiting as Young contended.” Accordingly, the court denied the petition for review.
Identifying one available position in two different types of work is sufficient to establish suitable alternate employment; McQuigg v. Director, OWCP (Marine Corps Community Services), No. 25-1040, 2026 U.S. App. LEXIS 18093 (9th Cir. June 23, 2026) (per curiam).
Jacqueline McQuigg began working for Marine Corps Community Services at Camp Pendleton, California in 2006, providing education and training for new parents and developmental assessments of children up to age six. On June 16, 2014, she felt pain in her back after lifting boxes of equipment onto a cart in preparation for teaching a class. She underwent low back surgery in April 2018, took a medical retirement in July 2018, and did not seek alternate employment. McQuigg brought this claim for benefits under the LHWCA, as extended by the Nonappropriated Fund Instrumentalities Act. The extent of her disability was tried in a formal hearing, and ALJ Berlin found that McQuigg was permanently and partially disabled with a weekly earning capacity of $887.78 (working remotely from home as a triage nurse). McQuigg appealed to the Benefits Review Board, arguing that the employer only established one job as a triage nurse and not a range of jobs. However, ALJ Berlin found two alternate jobs, one as a nurse and one as a telemarketer. The BRB rejected the appeal, stating that “there is no law supporting Claimant’s contention that one available job in telemarketing and one available job in light nursing are insufficient to establish the availability of SAE merely because the categories of work are dissimilar.” McQuigg filed this petition for review with the Ninth Circuit arguing that the employer could not, as a matter of law, satisfy its burden to establish suitable alternate employment “when only one suitable position was available as a telephone solicitor/telemarketer (inside sales) and only one suitable position was available as a light duty nurse.” The Ninth Circuit disagreed, noting that McQuigg cited no cases supporting the argument that an employer must identify more than one position in each category of work and denying that the argument was analogous to identifying only one available job. The court concluded: “The ALJ found that the Marine Corps identified two specific and available job opportunities and provided evidence of the availability of similar jobs. This satisfies the requirement to show that suitable alternate employment was available.” Therefore, the Ninth Circuit denied the petition for review.
Voluntary retiree was entitled to award of permanent partial disability benefits for disability to his lungs without the diagnosis of a specific condition or inability to return to his usual work; Jeffboat, Inc. v. Director, OWCP (Chaffers), No. 24-2234, 2026 U.S. App. LEXIS 18249 (7th Cir. June 23, 2026) (Maldonado).
Calvin Chaffers worked as a ship painter for Jeffboat for twelve years in its shipyard in Jeffersonville, Indiana. He was laid off in 2017 and filed a claim for LHWCA compensation (carrier American Longshore Mutual Association), claiming that he experienced breathing difficulties from exposure to lung irritants (fumes and particles from toxic paints, paint thinner, antifreeze, welding, gouging, sandblasting, and charcoal slag abrasive products). Chaffers has several health problems, including hepatitis, sinusitis, hypertension, obesity, asthma, sleep apnea, depression, anxiety, chronic neck and back pain, lupus, and HIV infection. He was a longtime smoker (half-pack a day), but he switched to vaping in 2015. He sought treatment for shortness of breath in 2017 and brought a claim under the LHWCA. His retained expert, Dr. Ankit Gupta, opined that the records reflected a moderate restrictive lung function (14% mild impairment due to a reduced diffusing capacity for carbon monoxide and history of shortness of breath). He also opined that his workplace exposures contributed to his resulting disability with reasonable medical probability. Jeffboat’s expert, Dr. William Frazier, opined that Chaffers did not have COPD, restrictive pulmonary disease, or pulmonary fibrosis, but that Chaffers had symptoms of shortness of breath and cough that are not a disease but symptoms of many causes that are common in men, such as Chaffers, who are former smokers with hypertension and HIV infection. As he did not believe that Chaffers had a confirmed pulmonary disease, Dr. Frazier did not offer an opinion on causation. ALJ DeMaio held a formal hearing and found that Chaffers invoked the Section 20(a) presumption, connecting his lung issues to his work exposures through the testimony of Dr. Gupta. He found that Jeffboat rebutted the presumption with the testimony of Dr. Frazier, and he gave the greater weight to Dr. Gupta’s opinion and concluded that Chaffers’ pulmonary impairment was causally related to his work for Jeffboat. ALJ DeMaio found that Chaffers was a voluntary retiree because he retired for reasons unrelated to his respiratory condition, and he awarded permanent partial disability under the AMA Guides (based on the definition of disability in Section 2(10)) pursuant to Section 8(c)(23) for a 14% respiratory impairment. Chaffers sought attorney fees under Section 28(a) in the amount of $7,358.25 for 13.25 hours of attorney time at an hourly rate of $501 and 5 hours of paralegal time at an hourly rate of $144 (plus costs). District Director Duhon awarded attorney fees of $4,697.50, based on 9.75 hours of attorney work at $388 per hour and 4.625 hours of paralegal work at $99 per hour. Jeffboat appealed the awards of disability benefits and attorney fees to the Benefits Review Board, arguing that none of Chaffers’ physicians considered him to be disabled because of a work-related issue. The BRB rejected the argument, answering that a voluntary retiree need not demonstrate an inability to return to his usual work in order to obtain benefits under Section 8(c)(23). As ALJ DeMaio resolved the factual disputes in favor of Chaffers, the BRB affirmed the award as supported by substantial evidence. Jeffboat also challenged the fee award as excessive, but the BRB responded that Jeffboat did not cite any specific error committed by Director Duhon. Therefore, the BRB affirmed the fee award. Jeffboat filed a petition for review with the Seventh Circuit with respect to the award of disability and the award of attorney fees. Jeffboat argued that Chaffers failed to prove that he suffered an injury, but, writing for the Seventh Circuit, Judge Maldonado answered: “Coughing and shortness of breath from restricted lung flow is certainly a physical harm, regardless of whether it is a diagnosed pulmonary condition.” Judge Maldonado rejected Jeffboat’s “suggestion that Chaffers had to prove he had a specific condition.” He stated that Chaffers “need only establish some physical harm, i.e., that something has gone wrong with the human frame.” She concluded that “it is enough that Chaffers suffered some sort of problems with his lungs, regardless of the label.” Judge Maldonado rejected Jeffboat’s arguments that the evidence did not support causal connection to the workplace conditions and that his history of smoking and other pre-existing health conditions were “the likely culprits” for his symptoms as they were resolved against Jeffboat based on the opinions of Dr. Gupta. Finally, Judge Maldonado denied Jeffboat’s argument that no physician had stated that Chaffers was unable to work due to his lung condition, agreeing that permanent partial disability for his lung condition was properly compensated under Section 8(c)(23). Turning to the fee award, Judge Maldonado held that Jeffboat waived the challenge by failing to provide the relevant record materials and develop an argument with legal citations. Nonetheless, Judge Maldonado commented on the “half-baked argument” by noting that the District Director already utilized his discretion by discounting the fees sought by a third. The court denied the petition for review.
Fifth Circuit agreed that employer and LHWCA carrier could not amend their subrogation claim in the shipowner’s limitation action to assert claims for an independent right of subrogation and a Burnside action after the court denied their subrogation action based on a waiver of subrogation, after that decision was affirmed by the Fifth Circuit, after the settlement of the case, and six months after the deadline to amend pleadings; In re Aries Marine Corp., No. 26-30226, 2026 U.S. App. LEXIS 28091 (5th Cir. Sept. 14, 2026) (per curiam).
Aries Marine owned the liftboat RAM XVIII, which was sent to house workers who were working on a platform in the West Delta region of the outer Continental Shelf of the Gulf of America off the coast of Louisiana (the workers were employed by Fluid Crane and United Fire). The vessel jacked up, and a construction crew worked until the next day when the vessel began to list and sank. Aries filed a limitation action in federal court in Louisiana, and seven workers on the rig filed claims against Aries under Section 5(b) of the LHWCA. Aries moved for summary judgment that it was entitled to exoneration of liability or, alternatively, limitation of liability. Judge Africk found a fact dispute whether the captain of the liftboat performed a preload before jacking up to ensure that the leg pads for the vessel were on stable ground and would not punch through the seabed. If the preload was not performed, Judge Africk concluded that the failure would constitute negligence under the vessel’s active control, in violation of the duty enunciated by the Supreme Court in the Scindia case. Turning to the limitation issue, Judge Africk noted that with respect to seagoing vessels, the privity or knowledge of the master at or before the beginning of the voyage is imputed to the owner. Aries did not dispute that the liftboat was a seagoing vessel (the accident did occur on the outer Continental Shelf more than 12 nautical miles from the coast). Thus, to the extent there was negligence of the captain before the voyage, it would be imputed to the owner. Judge Africk also cited evidence that the owner allegedly provided an unqualified captain whom it had failed to adequately train, and he declined to grant summary judgment as to limitation of liability. The vessel owner also moved to dismiss the punitive damage claims brought against it under Section 5(b) of the LHWCA on the ground that punitive damages are only recoverable against a third-party tortfeasor by a longshore worker who is injured in state territorial waters (and for lack of evidence of willful and wanton conduct). Judge Africk noted that the Fifth Circuit has not decided the question of whether punitive damages may be recoverable under Section 5(b), and he declined to grant summary judgment on the punitive damage claim. See February 2023 Update.
Fugro USA was hired to assist in positioning the liftboat by providing GPS positioning and performing a sonar scan for debris or obstructions on the sea floor. It provided plats that showed where prior vessels had been placed in the area, but the images Fugro provided only showed the impressions left by vessels that Fugro had helped to position. Therefore, it was possible that there were holes and impressions in the area that were not reflected in the data provided by Fugro to Aries. Fugro moved for summary judgment on the negligence claims asserted against it, noting that the claimants had placed the blame for the listing of the liftboat on Aries’ captain’s failure to conduct a preload (or on the conducting of an improper preload). In response to Fugro’s motion for summary judgment, the claimants argued that Fugro owed them a duty to advise the captain that there could be additional can holes in the area, that there were dark spots on the sonar images that might be additional can holes, and to exercise stop work authority when one leg of the liftboat penetrated deeper than had been expected. Judge Africk assumed for the motion that Fugro had a duty, but he could not find causation for any of the alleged failures, reasoning that, ultimately, the accident occurred because, as the claimants alleged, the captain failed to properly preload the vessel. The claimants’ expert confirmed that when the failure of the vessel occurs after the preloading, the preload was not adequate. As the preloading was not the responsibility of Fugro, Judge Africk dismissed the claims against Fugro.
Fieldwood, the owner of the platform, chartered the liftboat to provide worker housing in support of operations taking place on its platform. Fieldwood moved for summary judgment on the injury claims on the ground that, as the time charterer, it had no control over the vessel and assumed no liability for the negligence of the crew. Judge Africk noted that time charterers owe a “hybrid duty” arising from contract and tort to avoid negligent actions within the sphere of activity over which they exercise at least partial control. He added that a time charterer may be liable for directing the vessel to encounter natural hazards, such as dangerous weather or sea conditions. The claimants argued that Fieldwood was negligent by directing the liftboat to be positioned on the east side of the platform when it knew the conditions were hazardous and by limiting the scope of the marine surveyor (Fugro) to not include geo-technical data. As the claimants’ expert opined that it was likely that either soil samples existed for the location or that penetrations were known by Fieldwood, which, if credited, would permit a finding that Fieldwood had notice of the hazardous conditions and contributed to the failure, Judge Africk denied summary judgment to Fieldwood.
Judge Africk then considered the contracts between the parties for their indemnity obligations. Fieldwood entered into Master Service Contracts with both Fluid Crane and United Fire (employers of the claimants) by which Fluid Crane and United Fire agreed to indemnify Fieldwood for injuries to employees of Fluid Crane and United Fire. The indemnity extended to Fieldwood’s contractors (such as Fugro and Aries) if they entered into contracts with Fieldwood to extend indemnity (for injuries to their employees) to subcontractors of Fieldwood (such as Fluid Crane and United Fire). Fieldwood and Fugro entered into a Master Service Contract by which Fugro agreed to provide similar indemnity to Fieldwood and its contractors. Likewise, Fieldwood and Aries entered into a Master Service Contract by which Aries agreed to provide similar indemnity to Fieldwood and its contractors. Therefore, the contracts between Fieldwood, on the one hand, and Aries, Fugro, Fluid Crane, and United Fire, on the other hand, contained provisions by which each party agreed to indemnify the others for injuries to its own employees. Consequently, Fluid Crane and United Fire were obligated to indemnify Fieldwood, Aries, and Fugro for the claims brought by the employees of Fluid Crane and United Fire if the indemnity provisions were valid under applicable law (as Aries explained, “the cross-indemnity provisions in Fieldwood’s contracts with United Fire and Aries serve to “cut[] Fieldwood out of the equation,” and the contractors may seek indemnity from each other). The validity required a determination of whether Louisiana law or maritime law applied. If maritime law applied, the agreements were valid. If Louisiana law applied, the indemnity was invalidated by the Louisiana Oilfield Indemnity Act. Judge Africk applied the requirement from the Fifth Circuit’s Doiron case (whether the contract provided or the parties expected that a vessel would play a substantial role in the performance of the contract) to determine whether the contracts were maritime or not. The contracts at issue were the contracts between Fieldwood and Fluid Crane and United Fire to perform work on Fieldwood’s platform. Although Aries and Fugro were involved with the role of the liftboat, that expectation was not relevant to the contracts between Fieldwood and Fluid Crane and United Fire. Judge Africk distinguished cases in which the contract documents provided for the use of a vessel. In this case, “Aries and Fugro may have expected the vessel to play a substantial role in the completion of the work, but the same cannot be said of Fluid Crane and United Fire.” Therefore, Judge Africk concluded that Louisiana law applied, and he denied indemnity from Fluid Crane and United Fire to Aries and Fugro. He did not, however, hold that the LOIA invalidated the requirement for payment of defense costs when the indemnitee was found to be free from fault. Thus, if Aries were ultimately found free from fault, it would be entitled to reimbursement of its defense costs. Judge Africk had granted summary judgment on liability in favor of Fugro, so Fugro was entitled to recover its defense costs. Fluid Crane requested that Judge Africk order the defense costs be split evenly between Fluid Crane and United Fire, despite the fact that only one of the seven claimants was an employee of United Fire. Judge Africk agreed that, under Louisiana law, the defense obligation was incapable of division. Therefore, he ordered that the defense obligation be divided in equal portions between Fluid Crane and United Fire. See March 2023 Update).
One of the workers employed by Fluid Crane, Gilberto Gomez Rozas, was an undocumented immigrant who was not authorized to work in the United States. During his deposition and in discovery, Rozas repeatedly invoked the protection against self-incrimination in the Fifth Amendment, refusing to answer questions related to his citizenship and personal history. Aries argued that his claim should be dismissed with prejudice because Rozas had perpetrated a fraud on the court (and to deter future parties from similar conduct). In the alternative, Aries sought a sanction that Rozas be precluded from recovering past and future lost earnings at United States’ wage rates. Judge Africk reasoned that the party invoking the Fifth Amendment cannot hope to gain an unequal advantage against the party he has chosen to sue and that the defendant should not be required to defend against a party who refuses to reveal the very information that might absolve the defendant of liability. The Fifth Circuit has enunciated a balancing test that dismissal is appropriate only when less burdensome remedies would be an ineffective means of preventing unfairness to the defendant. In this case, Rozas did not commit perjury or provide false documents, but his invocation of the Fifth Amendment during depositions and discovery impeded Aries’ ability to investigate the claim for damages. Consequently, Judge Africk decided that the lesser sanction of precluding Rozas from seeking future wage loss awards at United States’ rates was the appropriate sanction. With respect to past wage loss, Rozas testified that he had not been working, and it had been four years since he prepared tax returns. The parties did not brief the issue of extending the sanction to past wage losses, so Judge Africk did not address the issue of past wage losses at this time. See April 2023 Update.
Aries moved for reconsideration of the decision on the contractual allocations involving Aries, Fugro Marine, United Fire, and Fluid Crane that was discussed in the March 2023 Update. Aries, Fugro, United Fire, and Fluid Crane were parties to contracts with Fieldwood that contained indemnity provisions that were enforceable under the general maritime law but that were unenforceable under Louisiana law. Applying the Fifth Circuit’s Doiron test, Judge Africk held that the contracts with United Fire and Fluid Crane were not maritime because there was no evidence that United Fire and Fluid Crane expected the vessel RAM XVIII would play a substantial role in the completion of the contract. Aries asked Judge Africk to reconsider that decision, arguing that Judge Africk erred by not considering Fieldwood’s expectations as to the use of the RAM XVIII. Judge Africk agreed that the expectations of Fieldwood were relevant (as it was a party to each of the contracts), but he answered that Aries did not cite any authority that the expectations of one party could establish that the parties expected that a vessel would play a substantial role. Thus, further discussion of Fieldwood’s expectations would not have changed the court’s analysis. Aries also argued that Judge Africk had added a third prong to the Doiron test—"did the vessel in fact play a substantial role in the completion of the contract?” Judge Africk disagreed, stating that the decision was based on the expectations of the parties and not on the use of the vessel (he noted that the actual use was only relevant, according to Doiron, when the parties’ expectations were unclear). Consequently, Judge Africk denied Aries’ motion for reconsideration. See June 2023 Update.
United Fire also sought reconsideration of Judge Africk’s decision to divide the defense costs equally between United Fire and Fluid Crane despite the fact that six of the seven claimants were employees of Fluid Crane and only one was an employee of United Fire. United Fire cited an opinion from Judge Vance of the United States District Court for the Eastern District of Louisiana that, absent a clear agreement to the contrary, insurers who owe a co-equal duty to defend must share the cost equally. However, United Fire did not identify any portion of the contracts that constituted a “clear agreement” to share defense costs in an unequal proportion, so Judge Africk held that relief was not available for arguments that had been previously considered and rejected (Judge Africk was not impressed with the analogy to seven individuals who had dinner together and split the bill for the appetizer so that each paid 6/7 of the cost, reasoning that defense costs “cannot be divided amount the claimants in the same manner that an appetizer would be shared among diners”).
As Fluid Crane and United Fire were the employers of the workers who were injured when the RAM XVIII capsized in the Gulf of America, their LHWCA carriers (American Longshore Mutual Association and the Louisiana Workers’ Compensation Corp.) paid benefits under the LHWCA for their injuries. ALMA and LWCC then brought subrogation claims to recover the benefits paid from the defendants. Fieldwood, Aries, and the plaintiffs moved for summary judgment, arguing that ALMA and LWCC had agreed to waive their rights of subrogation pursuant to the terms of the Master Services Contracts between Fieldwood and Fluid Crane and United Fire. Judge Africk noted that the policies provided for waiver of subrogation when required by written contract, so he considered the requirements of the underlying contracts. The waiver in the MSCs extended to the “Company Group,” which was defined to include Fieldwood and its “invitees.” ALMA and LWCC argued, however, that Aries and the plaintiffs also fell under the definition of “third Party Contractor Group,” which would render the language of the indemnity and insurance sections of the contracts superfluous because all parties and contractors/subcontractors would be members of the Company Group. Fieldwood answered that there was no prohibition against an invitee satisfying another definition in the contract and that this interpretation would not lead to circular indemnity or absurd results. Therefore, Judge Africk addressed whether Aries and the claimants were, in fact, invitees, citing Louisiana law that defines an invitee as a person who goes onto premises with the expressed or implied invitation of the occupant on business of the occupant or for their mutual advantage. Fieldwood argued that it was the occupant of the platform (one who has possessory rights in, or control over, certain property or premises) and the RAM XVIII (a time charterer is an occupant of the vessel because the vessel is under the ultimate direction, control, and command of the time charterer). It also argued that Fluid Crane and United Fire were invited by Fieldwood to the platform to work by their contracts and that they, and their employees, who performed the work that benefited Fieldwood, were, therefore, invitees. Judge Africk agreed that the employees of Fluid Crane and United Fire were invitees of Fieldwood and that LWCC and ALMA were required to waive subrogation in favor of the claimants. With respect to Aries, Fieldwood argued that the RAM XVIII, owned by Aries, was invited to erect itself within the boundaries of Fieldwood’s mineral lease to assist in the platform work, so Aries qualified as an invitee. Although Aries argued that no employee of Aries ever stepped foot on the platform, it did not dispute that the vessel was attached to the platform via a walkway and that its presence benefited Fieldwood. Having concluded that Aries and the workers were invitees so that subrogation was waived, Judge Africk considered the validity of the waiver under Louisiana state law, which he had previously held was applicable to the contracts so as to invalidate the indemnity provisions. Citing the Fontenot decision from the Louisiana Supreme Court, Judge Africk noted that a waiver of subrogation provision does not violate the Louisiana Oilfield Indemnity Act if the contract does not also require indemnity. As there was unenforceable indemnity in this case, Judge Africk held that the statute did not void the waiver of subrogation (there was no evidence of payment for a “Marcel” Endorsement that would create an exception to the LOIA). Consequently, the subrogation claims of ALMA and LWCC were dismissed. See July 2023 Update.
ALMA and LWCC filed motions for reconsideration of the granting of Fieldwood’s motion for summary judgment on their subrogation claims as LHWCA carriers. LWCC argued that, notwithstanding the waiver of subrogation, it had a claim for an offset, pursuant to Section 33(f) for the net tort recovery of plaintiff Glenn Gibson. Fieldwood did not disagree with the legal proposition asserted by LWCC, but it argued that LWCC had insufficiently raised the argument in a single paragraph in its opposition with no citation to facts or legal authority, resulting in waiver of the contention. Judge Africk agreed that “LWCC’s briefing on this issue was less than clear;” however, he acknowledged that dismissal of the claim for an offset would be “legal error.” Therefore, he amended the granting of summary judgment to reflect that the order did not affect LWCC’s claim for an offset pursuant to Section 33(f). ALMA moved for reconsideration, arguing that it was not conclusively established that the vessel was attached to the platform via a walkway and that Aries did not meet the definition of an “invitee” under applicable precedent. Judge Africk, however, did not believe that the arguments were sufficient to grant reconsideration, and he denied them. Like LWCC, ALMA argued that it retained the right to claim an offset pursuant to Section 33(f). Fieldwood reiterated the argument that ALMA’s claim was waived, but, as Fieldwood did not contest the legal basis for the argument, Judge Africk granted the same relief to ALMA--that it retained the right to assert an offset against the LHWCA claim pursuant to section 33(f). See September 2023 Update.
ALMA appealed the dismissal of its intervention to the Fifth Circuit, presenting these issues:
- Whether Aries Marine is an “invitee” of Fieldwood within the definition of the “Company Group” in the applicable Master Services Contract when there is a genuine issue of material fact as to whether Aries Marine physically entered a premises controlled by Fieldwood?
- Whether the Fluid Crane Claimants qualify as “invitees” of Fieldwood within the definition of “Company Group” in the applicable Master Services Contract despite also qualifying as members of the “Contractor Group”?
- Whether the applicable Master Services Contract and ALMA insurance policy included an obligation on the part of Fluid Crane (Employer) and ALMA (Insurer) to waive subrogation in favor of Fieldwood, Aries Marine, and the Fluid Crane Claimants?
- Whether the Louisiana Oilfield Indemnity Act invalidates any purported waiver of subrogation in favor of the Fieldwood Group?
After hearing oral argument, the Fifth Circuit affirmed (without a written opinion) Judge Africk’s decision that the waiver of subrogation was not invalidated. See May 2024 Update.
Back in the district court, Aries filed a second motion for reconsideration of Judge Africk’s order granting in part and denying in part the motions for summary judgment filed by Aries, Fugro, United Fire, and Fluid Crane (holding that United Fire and Fluid Crane do not owe Aries contractual indemnity for the claims brought by Fluid Crane and United Fire employees because the indemnity provisions are unenforceable under Louisiana law). Aries asked the court to reconsider the conclusion on the ground that the decision of the Fifth Circuit in Earnest v. Palfinger was an intervening change in controlling law that confirmed that the contracts were maritime and that the indemnity provisions are valid under maritime law [an argument that was unsuccessfully made in the Offshore Oil Services case that is discussed in the November 2024 Update]. Aries argued that courts should employ a conceptual rather than a spatial analysis, (2) that courts should focus on what is considered “classically maritime” in evaluating the role of a vessel under a Doiron analysis, and (3) that the location of the work being performed under a contract is inconsequential under Doiron. Judge Long first noted that Judge Africk’s order was interlocutory and that, under Rule 54(b), Judge Long had the authority to revise the decision even in the absence of new evidence or an intervening change in or clarification of the substantive law. He did caution, however, that successor judges should “carefully and respectfully consider the conclusions of prior judges before deciding to overturn them.” Nonetheless, Judge Long was not persuaded that he should alter Judge Africk’s ruling. He did not believe that the panel’s ruling in Earnest had changed the en banc ruling in Doiron that was applied by Judge Africk, and he added that any clarification of Doiron would not compel a conclusion that the contracts in this case are maritime. Judge Long explained that Judge Africk’s ruling correctly concentrated “on the contracting parties’ expectations.” The rulings did not rest on where the work was conducted, and there was no indication that Judge Africk would have reached a different result if he had considered what was “classically maritime” in evaluating the role of the vessel. As Judge Long was not convinced that the analysis in Earnest would have caused Judge Africk to conclude that the contracts were maritime, Judge Long declined to reconsider the ruling that the indemnity was invalid under Louisiana law. See December 2024 Update.
Aries moved for summary judgment on two of the claimants’ theories of liability, arguing that Aries’ positioning of the RAM XVIII did not cause the liftboat to capsize (based on Judge Africk’s decision granting Fugro’s motion for summary judgment) and arguing that the claimants could not invoke res ipsa loquitur to support their negligence claim because Aries did not have exclusive control over the seabed, which Aries argued was the instrumentality that caused the injuries. Judge Long disagreed with both of Aries’ assertions. He explained that a Fugro surveyor provided Aries with the information that Aries’ captain used to choose the place where to place the liftboat’s legs on the seabed; however, it was the captain who made the “last call” on where to place the liftboat, and he did not perform a preload before jacking up to ensure that the legs would not punch through the seabed. Thus, there could not be issue preclusion or law-of the case because Judge Africk did not decide the same liability issue when he granted summary judgment to Fugro. Turning to the claimants’ pleading of res ipsa loquitur, Aries argued that it did not have exclusive control over the instrumentality that caused the accident—the seabed. The claimants responded that the thing which caused the injury was the liftboat, which was under the control of Aries. As Judge Africk had found a fact question with the failure to conduct a preload, Judge Long reasoned that there was a fact question whether the liftboat was the relevant instrumentality. Therefore, he declined to grant summary judgment to Aries on the theory of res ipsa loquitur.
Judge Long then addressed the motions filed by Fieldwood, charterer of the liftboat, and Aries (owner of the liftboat) and its insurer, U.S. Specialty, with respect to allocation of responsibility between these parties for the claims brought by the employees of Fieldwood subcontractors Fluid Crane and United Fire—whether Fieldwood must defend and indemnify Aries (and U.S. Specialty) from the personal injury claims. The answer required consideration of the time charter of the liftboat by Fieldwood from Aries, the master services contracts between Fieldwood and Fluid Crane and United Fire, and the policy issued by U.S. Specialty to Aries. The time charter required Aries to procure P&I and excess insurance that named as insureds the Charterer Group (Fieldwood and certain contractors) and to waive subrogation against the Charterer Group. The requirements applied to self-insurance and deductibles. The time charter included subcontractors within the indemnity of Aries and required Fieldwood to execute an agreement with its contractors with cross-indemnity and waiver of subrogation provisions. U.S. Specialty’s insurance policy contained P&I coverage that named Fieldwood as an insured with a waiver of subrogation when required by contract. The master services contracts between Fieldwood and Fluid Crane and United Fire contained cross-indemnity provisions requiring Fluid Crane and United Fire to indemnify Fieldwood’s contractor group (including Aries). The reciprocal cross-indemnification provisions would require Fluid Crane and United Fire to defend and indemnify both Fieldwood and Aries for injuries to the claimants (employees of Fluid Crane and United Fire), except that Judge Africk held that the indemnity was invalid under the LOIA. Aries and U.S. Specialty then sought indemnity from Fieldwood, arguing that the time charter required indemnity from Fieldwood with respect to the injury claims of employees of contractors of Fieldwood. Judge Long applied maritime law to the obligations under the charter party and Louisiana law to the policy issued by U.S. Specialty (citing Fifth Circuit cases that were based on Wilburn Boat). As the time charter required a waiver of subrogation from Aries’ insurers, and as the U.S. Specialty policy contained a waiver when required by contract, Judge Long held that Aries and U.S. Specialty had no rights to pursue Fieldwood. Judge Long then addressed the argument of Aries and U.S. Specialty that Fieldwood could not enforce the waiver of subrogation because Fieldwood breached the time charter by not obtaining valid indemnity from Fluid Crane and United Fire that extended to Aries and U.S. Specialty (as the indemnity was voided by the LOIA). Judge Long disagreed. He agreed that the time charter required the cross-indemnity provisions, but he answered that the time charter did not require that the indemnity provisions be valid. As in the Fifth Circuit’s LeBlanc case, Judge Long concluded: “Had Fieldwood and Aries wished to condition the waiver-of-subrogation and additional-insured provisions of the Time Charter on ‘the legal enforceability of’ the indemnity provisions in the Master Services Contracts, ‘they very easily could have done so.’” Judge Long then addressed the claims of Aries and U.S. Specialty that Fieldwood was required to defend and indemnify them pursuant to the indemnity provisions in the time charter. His analysis with respect to the waiver of subrogation applied similarly to the argument of Aries and U.S. Specialty that Fieldwood was required to indemnify them in the event it failed to obtain cross-indemnity provisions with subcontractors Fluid Crane and United Fire. Fieldwood cited a “thoughtful but nonprecedential” 2006 decision from Judge Fallon of the United States District Court for the Eastern District of Louisiana, which reasoned: one indemnification agreement was not substantially similar to another because the latter agreement was ‘void and unenforceable,’ and ‘a void and unenforceable indemnity agreement is the functional equivalent of no indemnity agreement.’” Judge Long distinguished the language in the contract construed by Judge Fallon, answering that the language in the time charter in this case did not condition the insurance obligations on the enforceability of the indemnity provisions. Finally, Judge Long noted that the indemnity obligation excluded claims that are caused, in whole or in part, by the gross negligence of the Owner Group (Aries and U.S. Specialty). As Judge Africk declined to grant Aries’ motion for summary judgment on the punitive-damage claims against it, Judge Long declined the indemnity sought by Aries and U.S. Specialty for the claims that sought punitive damages. See January 2025 Update.
There was a settlement before the case was set for trial, and Judge Long entered a conditional order of dismissal and directed that any party that contended that it had a live claim requiring further litigation must file a motion to reopen as to that claim. Fluid Crane and American Longshore Mutual Association moved to reopen the case to allow them to litigate their “independent right of subrogation” and Fluid Crane’s Burnside negligence action against Aries Marine. Judge Long denied the motion, holding that the claims were not properly before the court because Fluid Crane and ALMA failed to timely and properly plead them. He noted that Fluid Crane and ALMA pleaded only one subrogation cause of action in their limitation claim, and the pleading did not include a Burnside action or an independent right of subrogation. The claim that was pleaded was denied by the court based on the waiver of subrogation, and the Fifth Circuit affirmed that decision. Fluid Crane and ALMA argued that they raised these actions in opposition to the motion for summary judgment in October 2024 and in a status report to the court later that month, but they cited no authority for the proposition that a limitation claimant may properly amend its claim in that manner or set forth good cause for the assertion that was made six months after the deadline for amendments to pleadings had expired. Fluid Crane and ALMA also argued that the independent subrogation/Burnside claims were raised in the pre-trial order, but Judge Long answered that the notice required claims to be described in section 3 of the proposed pre-trial order, but that section did not include any reference to the claims. Judge Long added that, even if the parties had intended to include the claims, they would have to satisfy the “good cause” standard, and he stated that he would not allow an amendment because they provided no excuse for the delay. Therefore, Judge Long declined to reopen the case to allow the claims for an independent right of subrogation and a Burnside action. See August 2025 Update.
Aries appealed the decision that the contract between Fieldwood and United Fire was not a maritime contract and that Louisiana law invalidated the indemnity provisions. Writing for the Fifth Circuit, Judge Graves applied the test enunciated by the en banc Fifth Circuit in Doiron. He began with the first half of the question: “does the contract provide or do the parties expect that a vessel will play a substantial role in the completion of the contract?” To decide whether the contract provided that a vessel would play a substantial role in the completion of the contract, Judge Graves cited Doiron that the focus “should be on whether the contract calls for substantial work to be performed from a vessel.” He noted that the only notable mention of a vessel in the MSC was for transportation, which is not considered in determining whether a vessel would play a substantial role. Aries argued that the appendix to the United Fire contract contained a checklist that directed United Fire to check boxes for each service/product it provided, and the section related to “platforms” was not checked. Thus, United Fire was not limited to performing services on a fixed platform. Judge Graves answered that the lack of a limitation to providing services on a fixed platform did “not change the fact that it was contracted—via a specific job order—to provide services on a fixed platform in this case.” The job order provided that United Fire would provide fire-watch services in an area where welding work was to be performed (using a gas detector). It made no mention of the RAM XVIII or any vessel. These documents differed from ones that were considered maritime in which the involvement of vessels was specifically identified in the contract (such as the requirement for a barge and tug for dock construction in Barrios v. Centaur or the maintenance and repair of lifeboats in Earnest v. Palfinger). Judge Graves then considered whether (when the contract does not identify use of a vessel) the parties expected a vessel to play a substantial role. The court was guided by the recent decision in Genesis Energy v. Danos (see October 2025 Update) in which the contract provided for repair work on a platform but also for the use of a vessel to house the workers and equipment to be used on the platform. The vessel’s function in transportation and housing of workers and equipment was described as “ancillary” and “legally insufficient” to consider the contract to be maritime. Fieldwood anticipated use of the liftboat for transportation, crane work, and lodging, but that did not establish the expectation of United Fire (the test is based on the expectations of the parties). Aries also argued that the actual use of the liftboat was substantial as it was used to provide construction and crane support (in addition to use as a living quarters). Judge Graves answered that the fact that the vessel was instrumental in helping with crane support was “irrelevant to United Fire, who was contracted to provide fire watch services and not crane services.” Judge Graves concluded: “Fieldwood expected that the liftboat would play a substantial role in its platform repairs. But United Fire did not.” Its “one-sided expectation” was insufficient in light of the cases that have “made clear that a vessel’s substantial role must be a shared expectation.” As the second prong of the Dorion test was not satisfied, Judge Graves affirmed the decision of Judge Africk and Judge Long that the contract was not maritime and that Louisiana law applied. See March 2026 Update.
LHWCA employer Fluid Crane and LHWCA carrier ALMA, whose motion to reopen the case to allow them to litigate their “independent right of subrogation” and Fluid Crane’s Burnside negligence action against Aries Marine was denied by Judge Long (see August 2025 Update), filed a motion for reconsideration of the denial, arguing that they had adequately pleaded a Burnside claim and independent right of subrogation against Aries Marine. They cited specific allegations from their pleadings and, for the first time, argued that an LHWCA claim does not encompass reimbursement for all types of expenses sought in their limitation claim and that “the very act of seeking reimbursement for certain expenses independently suffices to plead a Burnside claim alongside an LHWCA claim.” Judge Long answered that rehashing the adequacy of the pleadings was not appropriate in a motion for reconsideration, and he held that the “eleventh-hour gesture” with respect to the expenses also failed, noting that they could have raised those arguments in their original motion. He also rejected the argument that the claims were sufficiently incorporated into the final pretrial order, noting that the court had rejected “strikingly similar” arguments in the motion to reopen. Judge Long concluded: “Fluid Crane and ALMA’s ‘recitation of duplicative and meritless arguments that have already been exhaustively considered does not entitle [them] to a second bite at the apple’ under Rule 59(e).” ALMA and Fluid Crane filed a notice of appeal on April 17, 2026. See July 2026 Update.
ALMA and Fluid Crane argued on appeal that they adequately pleaded their Burnside claim in their initial pleading and, in any event, incorporated their claim (together with Fluid Crane’s independent right of subrogation) in the joint pre-trial order. They cited the allegation that to the extent Aries was found liable to due to “fault, negligence, or error,” they were entitled to recover “for all damages incurred,” including “reimbursement of . . . Act benefits provided to Fluid Crane employees” and “reimbursement for medical expenses, equipment, and personal effects sustained by Fluid Crane on account of its employees.” The Fifth Circuit held that the allegations did not adequately state a Burnside claim (there was no mention of duty or breach) and were consistent with a subrogation claim. The pre-trial order contained references to the theories asserted by ALMA and Fluid Crane, but Section 3 (legal relationships with respect to the claims) contained no reference to Burnside claim. Noting that the claims had not been properly pleaded and the amendment deadline had long passed, the Fifth Circuit could not say that Judge Long abused his discretion “when concluding that references buried in sections outside the appropriate (court ordered) one failed to provide the other parties with adequate notice and properly amend the pleadings.” Therefore, the Fifth Circuit affirmed the denial of the effort to reopen the case.
From the federal district courts
Judge declined to grant summary judgment in dispute between injured worker’s attorneys over division of fees after settlement of worker’s tort suit against third parties; Cockburn v. Apex Oil Co., No. 2:22-cv-2058, 2026 U.S. Dist. LEXIS 126908 (E.D. La. June 9, 2026) (Ashe).
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 data from the Mississippi River Traffic Information Service. 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. See October 2025 Update.
Cockburn settled his claims against the defendants in the lawsuit, resulting in an attorney fee of $518,500, and the division of the attorney fee became an issue. Cockburn initially hired Thomas W. Shlosman (the Shlosman Law Firm), who contacted Caitlin B. Carrigan to assist. Shlosman and Carrigan agreed to split the contingent fee on a 50-50 basis, and they both represented Cockburn for more than two years. The extent of the representation is disputed. Carrigan asserts that she assisted on both the tort claims and with the workers’ compensation claims under the LHWCA and Louisiana state act, and Shlosman claims that Carrigan only handled matters related to the workers’ compensation claims. Cockburn terminated Carrigan on July 14, 2024, and Carrigan and Scott Vicknair filed an intervention in the lawsuit, seeking to recover half of the attorney fee for the settlement of the lawsuit $259,250). Carrigan asserted that Shlosman breached the joint contingency agreement by purposely excluding Carrigan from litigation proceedings and convincing Cockburn to terminate Carrigan without cause (asserting claims for breach of contract, quantum meruit, and breach of a joint venture agreement). Cockburn and Shlosman moved for summary judgment, and Judge Ashe granted summary judgment to Cockburn that he was not liable for breach of contract or quantum meruit because he owes only one contingent fee agreement, which was paid. The amount sought by Carrigan ($259,250) was being held in Shlosman’s trust account. Judge Ashe declined to grant summary judgment with respect to Carrigan’s claims against Shlosman, finding fact questions whether Carrigan contributed meaningful work to the tort claims and whether she was terminated for cause, and adding that the division of fees with respect to the LHWCA compensation claim was premature as no fees had been awarded. Judge Ashe held a bench trial on September 1 and 2, 2026 with respect to the intervention.
Fact questions precluded summary judgment for boat company (under Section 905(b) and general maritime law) and platform crane operator (state law) with respect to injury to platform worker during transfer from boat to platform; Gannard v. Island Operating Co., No. 6:23-cv-993, 2026 U.S. Dist. LEXIS 127849 (W.D. La. June 9, 2026) (Summerhays).
The Update previously addressed coverage issues arising for the injury sustained by Russel J. Gannard, III, an employee of Quality Construction & Production who was injured while being transferred from the deck of a REC Marine vessel (M/V GOL FORCE) to an offshore fixed platform owned by Arena Offshore and located on the outer Continental Shelf at Main Pass 123 in the Gulf of America, off the Louisiana coast. Gannard claims that he was attempting to enter the personnel basket and was slammed onto the deck of the vessel as a result of the negligence of the crane operator on the platform, who was employed by an entity named Quality Production Management. Gannard brought suit in Louisiana federal court, naming REC Marine Logistics and others (discussed below), and Quality Production Management brought a suit in Louisiana federal court against REC Marine and Quality Construction’s insurers in response to REC Marine’s demand against Quality Construction for defense and indemnity. REC Marine and Arena are parties to a Master Time Charter Agreement under which Arena agreed to indemnify REC Marine for injuries to employees of Arena or its contractors. Arena also agreed to name REC Marine as an additional insured on enumerated policies. Quality Construction entered in a Master Service Contract with Arena under which Quality Construction agreed to indemnity Arena and its contractors for injuries to Quality Construction’s employees and to name Arena and its contractors on enumerated policies. Arena paid the insurance provisions for itself and its contractors to be named on a policy issued to Quality Construction by Travelers Underwriter Syndicate No. 5000 TRV. Arena also entered into a Master Service Contract with Quality Production Management that contained similar provisions for indemnity and insurance in connection with demands made by its employees. REC Marine requested indemnity and additional insurance from Arena (based on the time charter) on the ground that Gannard was an employee of Gannard’s contractor, Quality Construction, and Arena made a demand on Quality Construction to defend and provide additional insurance for REC Marine pursuant to its Master Service Contract with Quality Construction (as REC Marine was a contractor of Arena). Quality Construction notified its insurer Travelers of the demand, and Travelers agreed to participate in the defense of REC Marine, subject to a reservation of rights. Travelers filed a motion for judgment on the pleadings, and Quality Construction filed a motion for summary judgment. Judge Summerhays began by analyzing Arena’s claim for contractual liability coverage (for its indemnity obligation to REC Marine) under the policy issued by Travelers to Quality Construction. The Master Service Contract required that Arena be named as an insured and that Quality Construction indemnify both Arena and its contractor REC Marine. However, the Master Service Contract did not require Quality Construction to assume the contractual liability of Arena to REC Marine. Additionally, Judge Summerhays stated that the demand came from REC Marine, which was not an invitee of Quality Construction. Therefore, Judge Summerhays granted Travelers summary judgment that it did not provide contractual liability coverage to Arena for its indemnity obligation to REC Marine under the time charter. Judge Summerhays then addressed Quality Construction’s motion addressing whether it must pay the $250,000 deductible owed under the Travelers policy with respect to costs incurred by Arena and/or REC Marine as a result of their own fault (arguing that such an obligation would violate the Louisiana Oilfield Indemnity Act). Judge Summerhays had to determine whether the contract was governed by maritime law in order to decide if the LOIA was applicable. The Master Service Contract required Quality Construction to provide construction operations on a fixed platform on the outer Continental Shelf and did not require use of vessels except for transportation (which is not considered under the Doiron test). Therefore, Judge Summerhays held that Louisiana law and the LOIA applied to the Master Service Contract. The application of Louisiana law presented a question of first impression—whether the payment of an insurance deductible by an indemnitor violates the LOIA when the indemnitee/principal paid a Marcel premium to be an additional insured on the policy. Judge Summerhays reasoned that the payment of the Marcel premium addressed the cost of insurance, but it did not address the fact that Quality Construction would bear the economic burden of the cost of defense/liability for REC Marine if it was liable for the deductible. To that extent, Judge Summerhays believed that the contractual indemnity/insurance requirement would violate the LOIA if the defense/liability costs arose out of the negligence of REC Marine. At this stage of the litigation, summary judgment was premature because the liability of REC Marine had not been determined. See July 2026 Update.
Gannard brought his suit in Louisiana federal court against Island Operating Co., REC Marine Logistics, and Quality Production Management pursuant to the Outer Continental Shelf Lands, Section 5(b) of the LHWCA, and Louisiana negligence law. Quality Production Management and REC Marine moved for summary judgment. Beginning with Quality Production Management, Judge Summerhays first determined the applicable law. Reasoning that the claim asserted negligence of a crane operator on the platform during a transfer between a vessel and the platform, Judge Summerhays concluded that Louisiana law (as surrogate federal law under the OCSLA) and not maritime law applied. Quality Production Management argued that it did not have a duty to anticipate and account for unpredictable wave conditions or act negligently in the transfer, but Judge Summerhays found two triable fact issues. First, he found an issue whether the crane operator lifted and then dropped the personnel basket before Gannard had fully boarded. Second, he found a triable issue whether the crane operator breached the duty of care by failing to leave adequate slack in the crane line to account for sea conditions. Turning to REC Marine, Gannard asserted negligence claims under Section 5(b) of the LHWCA and negligence under the general maritime law. Judge Summerhays agreed that different principles could apply to the claims against the vessel owner under Section 5(b) and the general maritime law, but he did not have to decide which principles applied because he found a fact question that resulted in denial of summary judgment regardless of the applicable standard. Noting his finding that there was a question whether inadequate slack in the crane line rendered the transfer unsafe, Judge Summerhays cited evidence that the deckhand was responsible for communicating with the crane operator when more slack is needed to account for sea conditions. The deckhand also confirmed that he is responsible for informing basket passengers to wait if it is unsafe to board the basket. Therefore, Judge Summerhays denied both motions.
From the state courts
Appellate court affirmed summary judgment in claim of longshore worker against the Port Authority for the worker’s injury when an object fell on his head during the discharge of a container by the Port Authority; Jones v. Georgia Ports Authority, No. A26A1190, 2026 Ga. App. LEXIS 455 (Ga. App. Sept. 24, 2026) (Dillard).
Gary Jones was working as a ship-side flagman at Container Berth 7 in the Port of Savannah, Georgia during the unloading of containers from a Maersk vessel. Justin Pfuelb was operating Georgia Ports Authority’s Savannah Crane 32, lifting containers from the vessel and loading them onto jockey trucks. A large bag containing trash and a food tray fell during the unloading of a container, striking Jones on the head, and Jones brought this suit in state court against Georgia Ports Authority (alleging that Pfuelb was negligent for failing to inspect the container for foreign objects before and while hoisting it from the vessel and for failing to warn the stevedore and Jones that a foreign object was falling so that Jones could get out of the way). Jones did not respond to Georgia Ports Authority’s motion for summary judgment, and the judge granted the motion after holding a hearing. Writing for a majority of the Court of Appeals, Judge Dillard noted that Jones briefly referenced potentially relevant legal authority, but he did not apply it to the facts of the case and he did not identify the evidence that he considered to be inconsistent so as to create a fact question to defeat summary judgment. Therefore, the appellate court affirmed the grant of summary judgment. Judge McFadden dissented, reasoning that the evidence was not sufficient to grant summary judgment. The judge granted summary judgment on the basis of the crane operator’s testimony that he checked the top of the container for a hazard and did not see anything. Therefore, the bag must not have been on top of the container where it could be seen by the crane operator. Judge McFadden believed the testimony was sufficient to authorize a jury to infer that the crane operator simply failed to pay close enough attention. Although a two-page argument was sparse on record citations, Judge McFadden disagreed that the argument was not “fulsome enough” to set forth the fact dispute.
And on the maritime front . . .
From the federal appellate courts
Fifth Circuit affirmed vacating of referral to Magistrate Judge who awarded $124,531,652 in favor of a terminal lessee against the Port of Lake Charles (for the failure of the Port to secure dredging permits that would allow larger vessels access to the terminal) based on the longstanding friendship between the Magistrate Judge and the plaintiff’s attorney; IFG Port Holdings, L.L.C. v. Lake Charles Harbor & Terminal District, No. 24-30552, 2026 U.S. App. LEXIS 27543 (5th Cir. Sept. 8, 2026) (Graves).
IFG Port Holdings entered into a Ground Lease Agreement with the Port of Lake Charles on which IFG was to build a grain export terminal at a cost of more than $50 million. This dispute arose because the Port did not obtain permits to allow dredging that would permit IFG to load larger, deeper draft cargo vessels that were necessary for IFG to seek trade with the most profitable markets. IFG Port Holdings brought this suit in Louisiana federal court against the Port of Lake Charles, and the parties agreed to trial before Magistrate Judge Kay. Magistrate Judge Kay held that the Port had breached its contract with IFG by failing to secure the appropriate permits that would allow IFG to dredge to the depth designated in the contract. She ruled that IFG was entitled to damages to be determined plus its attorney fees and costs. See September 2020 Update.
After a hearing on damages, Magistrate Judge Kay entered a judgment in the amount of $124,531,652 in favor of IFG against the Port that included business losses of $41,696,272 associated with IFG’s inability to market itself as a fully operational terminal and to load deeper draft cargo vessels, treble damages under the Louisiana Unfair Trade Practice Act on the portion of the business losses after notice, outside counsel attorney fees for the work of several firms in the amount of $2,115,509, and general counsel fees of $1,085,000 for the CEO and General Counsel of IFG (estimated 3,500 hours at $310 per hour as he did not keep a contemporaneous record of his time as in-house counsel). See April 2022 Update.
After entry of the judgment, the Port learned of the undisclosed longstanding friendship between IFG’s attorney and Magistrate Judge Kay, including that the lawyer was a groomsman in the wedding of the magistrate judge and the magistrate judge officiated the wedding of the lawyer’s daughter three months before the suit was filed. Concluding that the facts asserted (if true) raised serious doubts about the validity of the consent to have the case tried by the magistrate judge, the Fifth Circuit vacated the order of referral to the magistrate judge and remanded the case to the district judge for an evidentiary inquiry as to the validity of the referral. See October 2023 Update.
On remand, Judge Truncale held a three-day evidentiary hearing and found that the Port’s consent to trial before Magistrate Judge Kay was not knowing. Therefore, he vacated the referral. IFG appealed to the Fifth Circuit, which found no abuse of discretion and affirmed the vacatur of the referral. In his 59-page order, Judge Truncale found that Magistrate Judge Kay, the attorney, and their families shared “a close, multifaceted, and personal friendship spanning nearly forty years.” Yet, Magistrate Judge Kay only disclosed the employment of the attorney’s daughter as a law clerk. Writing for the majority of the Fifth Circuit panel, Judge Graves agreed that vacating the referral is an extraordinary remedy, but he believed there were serious concerns about the fairness of the hearing that were exacerbated by Magistrate Judge Kay’s unusually harsh order, calling the Port’s behavior “extortionary,” “sanctimonious,” “nefarious,” and other like descriptors. She also accused the Port’s lawyers of acting with a “hubris” that was “stunning,” and “flagrant[ly] violat[ing] . . . court rules and procedures.” Judge Oldham dissented, comparing the recusal effort to a Hail Mary pass: “the point of the Hail Mary pass is that it sometimes works. And for the Port, that sometime is today.” Judge Oldham noted that the Port’s lawyer compared Magistrate Judge Kay’s ruling to “losing the Super Bowl by eight touchdowns.” As to the merits, Judge Oldham noted that the Port had to prove that the case involved “extraordinary circumstances,” and he believed that the case involved “commonplace relationships between bench and bar.” He explained: “As I see it, attending a few group meals and social events, exchanging friendly text messages, and the like over the course of a few decades is ordinary—not extraordinary.” He concluded: “The Port set a trap: muddy the waters with facts and hope the resulting mess justifies some rule that vacates the judgment. It is a mistake to follow that course.”
The state building code in effect at the time of the application of the permit governed the work performed in repairing a dock, and the compliance with that version of the code (circuit breaker without ground fault protection) resulted in affirmance of summary judgment to the contractor when the failure to have ground fault protection (required at the time of the construction) caused a fire that destroyed the yacht at the dock; AIG Property Casualty Co. v. Eco Marine Solutions, Inc., No. 26-10302, 2026 U.S. App. LEXIS 28102 (11th Cir. Sept. 14, 2026) (per curiam).
Jeffrey McMillin moored his 46-foot Viking Yacht behind his residence in Boca Grande (Gasparilla Island), Florida. In 2020, McMillin entered into a construction contract with Eco Marine to remove and dispose of the existing dock pilings, install new dock pilings and composite decking that included replacing the dock’s existing electrical service and replacement with 50-amp service. The contract required that Eco Marine perform the work in accordance with all local codes, ordinances, and regulations. Eco Marine applied for a permit with Lee County on December 14, 2020. Lee County issued a permit application number on December 16, 2020, and a dock permit was issued on May 17, 2021. The permit stated that it was subject to: “Current Florida Building Code: Florida Building Code Sixth Edition (2017).” The Sixth Edition went into effect on December 31, 22017, and was replaced by the Seventh Edition on December 31, 2020. The Sixth Edition required ground fault protection for marinas and boatyards, but it did not apply to single-family dwellings. The Seventh Edition that went into effect on December 31, 2020 extended the requirement to noncommercial docking facilities. Eco Marine subcontracted the electrical work to Custom Electrical, which installed a 50-amp circuit breaker for shore power (but the circuit breaker lacked ground fault protection). The dock project passed its final inspection on October 19, 2021. On February 17, 2023, a fire started on the yacht, and the vessel sank. The yacht’s insurer, AIG, raised the vessel, paid $1.8 million, and hired an expert to determine the cause and origin of the fire. The expert opined that the fire started because of electrical arching on the shore power cord in an area located inside the yacht that was controlled by the shoreside circuit breaker. The expert also opined that had the 50-amp breaker had the required ground fault protection, the fire would not have occurred. AIG brought this subrogation action against Eco Marine and Custom Electrical in Florida federal court, asserting claims for breach of contract and violation of the Florida Building Code. The parties moved for summary judgment, and Judge Chappell reasoned that the decision depended on which version of the Code to apply. Judge Chappell agreed with the defendants that they were bound to follow the code in effect at the time of the application, not when the permit was issued or when the project was completed. As the Sixth Edition (in effect at the time of the application) did not require ground-fault protection for the circuit breaker, Judge Chappell held that the defendants did not breach the code or their contract. AIG appealed to the Eleventh Circuit, arguing that the language that the contractor would perform the work in accordance with all local codes required that the contractor comply with the code in effect when the work was performed. The Eleventh Circuit disagreed, stating: “We think the contract cannot be understood as an agreement that Eco Marine would ensure that the project complied with inapplicable codes, laws, ordinance, or regulations.” The code was certainly in effect when the work was performed. However, it did not govern the work under Florida law. Therefore, the Eleventh Circuit affirmed the grant of summary judgment to the defendants.
From the federal district courts
Judge denied contract and pure salvage claims of salvor who took over salvage of a sunken vessel based on misrepresentation and awarded attorney fees against unsuccessful salvor; Green Mountain Mycosystems LLC v. Alfouadi, No. 1:22-cv-64, 2026 U.S. Dist. LEXIS 122006 (D. Hawaii March 11, 2026) (Otake), 2026 U.S. Dist. LEXIS 123872 (D. Hawaii May 15, 2026) (Mansfield), recommendation adopted, 2026 U.S. Dist. LEXIS 121355 (D. Hawaii June 1, 2026) (Otake).
Raied J. Alfouadi’s 29-foot sailboat came loose from its mooring and ran aground at Mala Wharf in Lahaina, Maui during a storm in January 2022. Before the grounding, Alfouadi lived on the boat. Green Mountain Mycosystems, owned and managed by Alfouadi’s former friend, David Demarest (the friendship ended before the incident in an argument while they were repairing a roof together), sought compensation for work performed to salvage the sailboat. Demarest and Green Mountain brought this suit in admiralty in federal court in Hawaii against Alfouadi and the sailboat for breach of an oral salvage contract, breach of an implied salvage contract, quantum meruit, and pure salvage. Demarest alleged that the vessel’s mast was “vilently” [sic] hitting the historic wharf and posed an imminent hazard to delicate underwater reef and surrounding marine life and a potential substantial environmental impact as hazardous materials needed to be promptly removed from the wreckage. Demarest asserts that he entered into an oral or implied contract with Alfouadi to initiate salvage efforts but was never paid by Alfouadi or the vessel’s insurer. In admissions, Demarest misrepresented to Alfouadi that he had been awarded a salvage contract by the State of Hawaii, but Judge Otake concluded that the representation was not true. Demarest was dismissed as a plaintiff, but the misrepresentation flowed to Green Mountain. The case proceeded to trial before Judge Otake with the parties presenting contrasting versions of the facts. The boat sank quickly after being punctured by rocks in high waves. Demarest claims that he came to the scene and offered to have Green Mountain take responsibility for the environmental damage and wreck removal if Alfouadi opened a claim with the vessel’s insurer to pay for the work. Alfouadi and a friend (Jeffrey Pratt), denied the conversation, and Judge Otake found that Demarest tried to inject himself into the situation to monetize his effort without an agreement. A few days later, Demarest purchased things to help in the removal, and he collected flotsam from the site as the boat broke apart. Demarest also asked a diver to help and told him that he would probably be paid out of the insurance claim. Alfouadi originally worked hard on the salvage and used some of Demarest’s equipment. Eventually, Alfouadi stopped his efforts and Demarest and his helpers worked on the removal until the job was complete. Demarest kept buying things for the job, with charges exceeding $21,000 (including medical supplies for wounds, rapid depreciation of Demarest’s girlfriend’s truck, sunglasses, replacement sandals, and a cell phone). Green Mountain sought a total of $126,410.75. Alfouadi never told Demarest to stop working on the project, and Judge Otake found that the State would have removed the wreckage and sought reimbursement if the wreck had not been removed. Alfouadi did not file a claim with the insurer; Demarest never submitted anything to the insurer; and Alfouadi was under the impression that the State deemed Demarest the salvager of record. Judge Otake found that Demarest ruined his credibility and that Alfouadi was not fully credible, stating: “In some ways Alfouadi and Demarest are two peas in a pod.” Judge Otaki found that Green Mountain did not establish by a preponderance of the evidence that there was an oral salvage contract. Judge Otaki also declined to find that there was an implied contract because Alfouadi was convinced by Demarest that the State had selected Green Mountain as the salvor. Any expectation that Alfouadi had that his insurer would pay for the work was based on Demarest’s misrepresentation. Similarly, Judge Otake declined to award damages to Green Mountain for quantum meruit because Demarest was trying to take advantage of Alfouadi’s misfortune and turn the operation into a business opportunity based on deception. Finally, Judge Otake turned to the claim for pure salvage. Although Green Mountain did succeed in saving some property, Judge Otake noted that the salvor must act in good faith, with honesty of purpose, and with clean hands: “Because of the heightened vulnerability of a distressed ship and crew to exploitation by salvors, the law cannot tolerate salvors[’] dishonesty, corruption, fraud, falsehood, either in rendering the service, or in their proceedings to recover the salvage.” Judge Otake did not have to decide if Green Mountain met the elements for a salvage claim, denying recovery because Green Mountain “seized control of the job by misrepresenting a material fact,” and concluding: “The Court will not reward such ‘unscrupulous and dishonest’ conduct and therefore finds against Plaintiff on its pure salvage claim.”
Alfouadi sought attorney fees under Hawaii law. As Green Mountain brought claims for breach of an oral contract, an implied contract, and for quantum meruit (in the nature of assumpsit), Magistrate Judge Mansfield recommended that fees be awarded to Alfouadi as the prevailing party (25% of the amount sued for if the defendant obtains judgment, which, based on the amount sought, was $31,602.69). Green Mountain did not object, and Judge Otake adopted the recommendation.
After entry of the judgment, Green Mountain moved for an extension of time to file its notice of appeal, which was granted by Chief Magistrate Judge Mansfield, who was facilitating settlement negotiations. Green Mountain filed a notice of appeal within the extended deadline, and the Ninth Circuit issued an order questioning whether magistrate judges may extend the time to appeal. The Ninth Circuit directed Green Mountain to dismiss the appeal or file a statement explaining why the appeal should not be dismissed for lack of jurisdiction. Green Mountain filed the statement, and the appeal is pending. However, Green Mountain filed a Rule 60(b) motion asking the court to vacate Chief Judge Mansfield’s order and grant the extension. Judge Otake noted that the motion was filed after the notice of appeal, so she ruled that the court lacked jurisdiction to grant the motion. Green Mountain asked for an indicative ruling, and Judge Otake obliged, stating “unequivocally” that she would grant the motion and issue an order allowing Green Mountain to appeal.
Judge awarded attorney fees after holding that suit for damage to vessel while in land-based repair and storage could not be removed based on admiralty jurisdiction; Stuck v. Owl Creek Boat Works & Storage, LLC, No. 2:25-cv-1175, 2026 U.S. Dist. LEXIS 103112 (M.D. Fla. May 11, 2026) (Steele).
Raymond Stuck’s vessel GOT IT! sustained damage at Owl Creek’s boat repair shop and storage center in Lee County, Florida. He brought suit against Owl Creek in state court in Lee County, Florida, alleging breach of contract, negligence, breach of bailment duties, breach of implied warranty, trespass to chattels, and conversion. Owl Creek removed the case to federal court based on diversity and original admiralty jurisdiction. Owl Creek failed to establish diversity jurisdiction with its allegation that it is an LLC whose members included individuals or entities who are citizens of states other than Florida, so Judge Steele considered whether Owl Creek had established that there was admiralty jurisdiction. Reasoning that the damage suffered by Stuck occurred on land, Judge Steele held that Owl Creek had not satisfied the locality requirement for the exercise of admiralty jurisdiction, and he remanded the case and agreed to award attorney fees [how does that compare to the train derailment in Alabama that the Supreme Court said was maritime in Kirby?]. See May 2026 Update.
Owl Creek moved for reconsideration of the decision to award attorney fees, and Judge Steele noted that the court is generally divested of jurisdiction to reconsider an order following remand, but the collateral issue of fees and costs remains reviewable. Reasoning that the saving-to-suitors clause “preserves a plaintiff’s right to file suit in state court [of course, the Supreme Court in The Moses Taylor stated: “It is not a remedy in the common-law courts which is saved, but a common-law remedy.”], Judge Steele declined to change his decision that attorney fees should be awarded and he ordered recovery of $1,600 (as the defendant conceded the amount was reasonable).
Judge agreed with recommendations and declined to grant summary judgment to cruise line on claims of negligent hiring/retention of operator of excursion and failure to warn when the passenger was injured while disembarking from the excursion’s ferry in The Bahamas in rough seas without a gangway; Judge agreed with recommendation not to dismiss claim against cruise line for failing to provide a safe means of embarking/disembarking with respect to the Ferry provided by the excursion, not to dismiss the count for failure to provide a safe excursion based on evidence of the outward facing entanglement of the cruise line with the excursion, not to dismiss the counts for the cruise line’s negligent training of its crew and the employees of the excursion, and not to dismiss the direct liability count for negligent supervision of its crew and the agents of the excursion; pleading negligent operation of the Ferry is not an inappropriate negligent mode of operations claim; Gilles-Jean v. Royal Caribbean Cruises, Ltd., No. 1:22-cv-22780, 2026 U.S. Dist. LEXIS 103651 (S.D. Fla. May 11, 2026) (Torres), recommendation adopted, 2026 U.S. Dist. LEXIS 125152 (S.D. Fla. June 5, 2026) (Gayles); 2026 U.S. Dist. LEXIS 103942 (S.D. Fla. May 11, 2026) (Torres), recommendation adopted, 2026 U.S. Dist. LEXIS 124751 (S.D. Fla. June 5, 2026) (Gayles).
Recommendation Summary Judgment
Recommendation Judgment on Pleadings
Marie Rosena Gilles-Jean, a citizen of New York, was a passenger on the cruise ship FREEDOM OF THE SEAS and was injured during a shore excursion operated by Dolphin Encounters in The Bahamas. She claims that she was injured while attempting to disembark the Blue Lagoon Ferry, operated by Dolphin Encounters, onto the floating dock that was attached to the FREEDOM OF THE SEAS when there was a sudden drop in elevation of the ferry that caused her left leg to be trapped between the floating dock and the hull of the ferry. Gilles-Jean brought this suit in federal court in Florida against Dolphin Encounters, its owner and managing director, Robert L. Meister, and the cruise line. Dolphin Encounters and Meister moved to dismiss the action against them for lack of personal jurisdiction, arguing that the accident involved a New York plaintiff against foreign defendants for an accident that occurred in foreign waters. Although Gilles-Jean cited a limited set of affiliations that the excursion had with Florida to support general jurisdiction, Magistrate Judge Torres held that the contacts were not “so substantial as to make this one of those exceptional cases in which a foreign corporation is at home in a forum other than its place of incorporation or principal place of business.” Magistrate Judge Torres also rejected Gilles-Jean’s argument that the accident arose out of contacts of the excursion with Florida (she saw advertisements for the excursion in Florida), stating: “Plaintiff has not cited a single act that was at all related to the injury that occurred in the waters off Nassau.” Magistrate Judge Torres also rejected the argument that Gilles-Jean was a third-party beneficiary of the Tour Operator Agreement between the cruise line and excursion, which contained a Florida forum-selection clause, as the Agreement contained an express disclaimer of third-party beneficiary status. Finally, the fact that Gilles-Jean served the excursion under the Hague Convention did not confer subject matter jurisdiction. Therefore, Magistrate Judge Torres recommended that the claims against Dolphin Encounters and Meister be dismissed for lack of personal jurisdiction. Magistrate Judge Torres then considered the cruise line’s motion to dismiss for failure to state a claim. He agreed with the cruise line that the claim that the passenger was a third-party beneficiary of the Tour Operator Agreement should be dismissed for the same reason as he stated in considering personal jurisdiction for the tour operator. However, he recommended that the claims for failure to provide a safe means of boarding, negligent selection and retention, failure to warn, and failure to provide a reasonably safe excursion not be dismissed as the pleading alleged sufficient notice to the cruise line for these claims. See October 2023 Update.
After significant discovery, the cruise line moved for summary judgment on two counts in the amended complaint, negligent selection, hiring, and retention, and negligent failure to warn. The cruise line argued that it engaged in an appropriate vetting program before it hired Dolphin Encounters. Magistrate Judge Torres noted that the cruise line did not perform site visits of Blue Lagoon Island or its ferries before contracting with Dolphin Encounters, which was enough to raise a fact question (Gilles-Jean complained that the cruise line did not retain bids from the vetting process thirty years earlier, but Magistrate Judge Torres did not believe that the cruise line had a duty to retain the initial bid forms for thirty years). Turning to retention, the cruise line argued that it was not aware of incompetence of Dolphin Encounters in the embarkation/disembarkation from ferries, but Gilles-Jean pointed to four suits in which the cruise line was the defendant involving embarking/disembarking the Blue Lagoon Island Ferry, which was sufficient to put the cruise line on notice that the process deserved stricter scrutiny. Additionally, Gilles-Jean presented testimony of a cruise line crewmember who testified that the disembarking area was unsafe (the sea was rough, the boat was going up and down, there was no gangway, there was a large gap to cross, and passengers were complaining of the danger). Accordingly, Magistrate Judge Torres recommended that the cruise line’s motion for summary judgment on the claim for negligent selection and retention be denied. Turning to the claim for failure to warn, employees of both the cruise line and Dolphin Excursions stated that the area was not safe, but Dolphin Excursions used it anyway. The cruise line argued that the condition was open and obvious as Gilles-Jean admitted that she had actual knowledge of the condition. However, Magistrate Judge Torres answered that the passenger must also perceive the extent of the danger, and he recommended that “the objective, reasonable person, who is not a seasoned mariner, cannot be deemed as a matter of law fully aware of the degree to which the waves would create a dangerous disembark.” Judge Gayles agreed with the recommendations and declined to grant summary judgment.
The cruise line also filed a motion to dismiss several of the counts in the amended complaint. It moved to dismiss the claim of negligent failure to provide a safe means of embarking/disembarking on the ground that the injury exceeded the scope of the cruise line’s duty because it occurred during the third-party excursion, not on a ship-to-shore transit “tender” boat. The cruise line argued that the Ferry was not a tender because it was transporting passengers from the dock at the Port of Nassau to Blue Lagoon Island, not from an offshore ship to shore and that only if the passenger is picked up or dropped off to a ship not in contact with a dock or land can the boat be a tender. Magistrate Judge Torres disagreed, noting that the Ferry only travels to and from Blue Lagoon Island as a means of transportation. Therefore, he declined to recommend dismissal of the count alleging failure to provide a safe means of embarking/disembarking. The cruise line moved to dismiss the count pleading negligence for failure to provide a safe excursion, arguing that it gave no assurance to passengers that the third-party excursions are safe. In response, Gilles-Jean alleged that she spoke with cruise line staff members who assured her of the safety of the excursion with representations that were so strong that she did not understand that Dolphin Encounters was a third party to the cruise line. Magistrate Judge Torres found sufficient allegation of an “outward facing entanglement” that included controlling the price, managing the tickets, affixing its logo on the ad on the website, vouching for the insurance and safety standards of the excursion, promoting the prompt return of the passengers to the ship, and dissuading passengers from using other tour companies, and inducing passengers to purchase the excursion. Accordingly, Magistrate Judge Torres recommended denial of the motion to dismiss the count for failure to provide a safe excursion. The cruise line moved to dismiss the claim for negligent training of its shipboard crewmembers and the excursion employees, arguing that Gilles-Jean failed to allege a specific training program. However, Magistrate Judge Torres disagreed, finding sufficient the allegation that the cruise line distributes training materials, warning messages, newsletters, and safety videos, but the materials do not train them to warn. He also declined to recommend dismissal of the count for negligent supervision of its crew and employees of the excursion. The count was brought for vicarious liability for the failure of the employees of the cruise line and excursion who failed to take corrective action. Magistrate Judge Torres agreed that the complaint did “not do much” to identify which crewmembers failed to supervise; however, the complaint asserted that crewmembers could clearly observe the dangers. Finally, the cruise line objected to the claim that the cruise line was liable for negligent operation of the Ferry, arguing that the claim was a negligent mode of operation claim that is not recognized under the general maritime law. Magistrate Judge Torres disagreed, taking the passenger at her word that she was pleading negligent operation of the Ferry, not that the mode of operations was negligent. Judge Gayles agreed with the recommendations and declined to grant judgment on the pleadings.
Cruise line’s training materials contained information about the hazard of hidden steps or changes in incline/height to provide notice to the cruise line for the passenger’s direct liability claims, but the passenger failed to sufficiently identify crewmembers for her vicarious liability claims; Dowdy v. Classica Cruise Operator Ltd, No. 9:25-cv-81204, 2026 U.S. Dist. LEXIS 104738 (S.D. Fla. May 11, 2026) (Cannon).
Ramona Dowdy, a passenger on the MARGARITAVILLE AT SEA PARADISE, tripped when she walked into the ship’s lounge. Dowdy claims that the step was a hidden, unmarked, low-level sudden change in height in the walkway of the ship’s dark, busy lounge area without markers, railings, lights, or warnings. Dowdy asserted eight counts of direct and vicarious liability against the cruise line in her suit in Florida federal court, and the cruise line moved to dismiss the complaint for failure to state a claim. The cruise line argued that Dowdy failed to plead sufficient notice for the direct claims, but Judge Cannon disagreed, concluding that Dowdy alleged that the step existed in its current condition since the ship’s construction and that the cruise line was aware that the condition created a tripping hazard based on its training materials that identify the specific hazard: walkways with hidden steps or sudden change of incline or height. The materials identify the danger that passengers will trip or stumble, and they inform crewmembers how to remedy the hazard by paint, marks, warning signs, illumination, glow tape, light strips, and other devices. The cruise line objected to the vicarious liability counts on two grounds, that the vicarious counts commingled allegations of direct liability (suggesting that maritime premises liability claims can be brought only under a theory of direct liability) and because Dowdy failed to identify any crew member for negligent acts. Judge Cannon did not have to reach the first contention because she held that Dowdy did not meet her burden to allege specific, identifiable crewmembers whose actions caused her to trip. Instead, Dowdy made “broad, sweeping allegations that nearly the entire crew was responsible, including the housekeeping stewards, their supervisor responsible for inspection and maintenance of the area, the persons responsible for training, and the New Build and Refurbishment departments who designed or approved the walkway. Judge Cannon explained that the breadth of the assertion demonstrated that the conduct was not attributable to a specific person and that the passenger was targeting a broader pattern of negligence that is appropriate for direct liability. As Dowdy merely tacked on a request for leave to amend at the end of her response and offered nothing in her perfunctory request that would suggest the existence of additional facts or specificity to cure the deficiency, Judge Cannon dismissed the claim without prejudice but without leave to amend.
Judge declined to stay limitation action during the pendency of criminal charges against the operator of the vessel seeking limitation; claimants seeking to recover for injuries and death (of passengers) on the other vessel were not entitled to bring unseaworthiness claims against the owner and operator of the colliding vessel; In re Mad Toyz III LLC, No. 8:25-cv-1914, 2026 U.S. Dist. LEXIS 104168 (M.D. Fla. May 12, 2026) (Mizelle); 2026 U.S. Dist. LEXIS 111828 (M.D. Fla. May 20, 2026) (Mizelle), recommendation adopted, 2026 U.S. Dist. LEXIS (M.D. Fla. June 4, 2026) (Mizelle).
Recommendation Unseaworthiness
This litigation arises from a collision between a 38-foot Statement 380 Open Motorboat, owned by Mad Toyz III and operated by Jeffrey David Knight, and the Clearwater Ferry MADDIE’S CROSSING (carrying more than 40 passengers) near the Memorial Causeway Bridge in Clearwater, Florida, resulting in the death of one passenger and injuries to others. Mad Toyz and Knight brought this limitation action in Florida federal court. Some of the claimants in the limitation action requested an advisory jury for the trial of all issues, and Mad Toyz and Knight moved to strike the demand. Magistrate Judge Adams noted that there is no right to a jury trial in an admiralty case; however, she added that Rule 39(c) provides that in an action that is not triable of right to a jury, the court may try an issue with an advisory jury. As the court has the discretion to employ an advisory jury, Magistrate Judge Adams held that the motion to strike was not an appropriate vehicle to assert that the district judge should not exercise her discretion to employ an advisory jury. Therefore, she denied the motion to strike the request for an advisory jury.
Mad Toyz and Knight also moved to strike “immaterial” or “scandalous” allegations in some of the claims concerning Knight’s statements and actions following the collision and concerning Knight’s alleged prior malfeasance in operating vessels and vehicles. The claimants responded that Knight’s statements after the collision were evidence that he believed he was liable, and his history of operating vessels and vehicles demonstrated his lack of the requisite knowledge of proper operation of the vessel (and that Mad Toyz negligently entrusted the vessel to him). As the claimants proffered reasonable bases for the allegations, Magistrate Judge Adams declined to strike the allegations, but she cautioned that Mad Toyz and Knight could present the arguments in a motion in limine to exclude evidence associated with the allegations.
The claimants moved to bifurcate the limitation action into a liability phase and a damages phase. If, after a bench trial on liability and privity, the court declined to limit the liability of Mad Toyz and Knight, the court would dismiss the limitation action and dissolve the injunction against parallel proceedings to allow trial to proceed in state court in Pinellas County. Magistrate Judge Adams agreed with the bifurcation of trials, but she disagreed with bifurcation of discovery to exclude any investigation of damages. She reasoned that bifurcating discovery would prevent the parties from discovering information necessary to the determination of liability and would not economize litigation. Magistrate Judge Adams explained that “damages inform the liability and apportionment analyses,” reasoning that in order to prove negligence, the claimants must establish that they were damaged and that the limitation petitioners caused the damage. She explained that an order dividing discovery “seems likely to breed confusion and heavy motions practice.” Accordingly, Magistrate Judge Adams granted the motion to bifurcate the trials so that the Court will decide whether the petitioners are entitled to limit liability before the Court considers the issue of damages (or allows the claimants to pursue damages in another forum), but she declined to bifurcate discovery. See February 2026 Update.
Knight and Mad Toyz moved to stay the limitation action pending the resolution of criminal proceedings against Knight in state court. The State of Florida charged Knight with 8 felony counts and 16 misdemeanor counts related to the collision, including leaving the scene of a boating accident involving injury and violating several navigational rules. Knight argued that having both cases proceeding at the same time required that he “choose between preserving his Fifth Amendment privilege and meaningfully defending the claims in the instant limitation proceeding” (he invoked his Fifth Amendment privilege over 200 times in his deposition in the limitation action). Knight noted that the assertion of the privilege could result in an adverse inference that could result in the granting of summary judgment against him that he could not rebut without testifying and risking self-incrimination. Judge Mizelle answered that staying the limitation action was discretionary, and Knight’s argument “looks tenuous.” She reasoned that there were four adult passengers on Knight’s vessel who could testify about the collision, and Knight could use forensic evidence, the authorities’ accident reenactments, and even the captured video of the collision to advance his defense. Additionally, Knight did not describe the anticipated adverse inference or connect it to an inevitable adverse judgment. Additionally, Knight did not persuade Judge Mizelle that a stay would promote the public interest because the criminal case is not set for trial until 2027, discovery in the civil case would not resume until after the criminal case concluded, and the actions in state court could not begin until after the limitation action was concluded. Accordingly, Judge Mizelle declined to grant the stay of the limitation action.
Sandy Beatriz Todd, personal representative for the Estate of Jose Castro, a passenger on the Ferry who was thrown from the Ferry in the collision and drowned, brought a claim in the limitation action that included an unseaworthiness claim. Todd asserted that Mad Toyz was liable for allowing an unfit person, Knight, to captain the vessel. Knight and Mad Toyz moved to dismiss the unseaworthiness claim, arguing that a shipowner makes no warranty of seaworthiness to a passenger on a separate vessel and that the warranty is only owed to seamen in the vessel’s employ or to carried cargo. As Todd did not claim that Castro was a seaman on Mad Toyz’ motorboat, Magistrate Judge Adams recommended that the unseaworthiness claim be dismissed. She did note that if Todd meant to assert a claim that Mad Toyz was liable for allowing an unfit person to captain the vessel, that was redundant to the claim in another count that Mad Toyz negligently entrusted Knight with the vessel. With no objection to the recommendation, Judge Mizelle dismissed the unseaworthiness count. Mad Toyz and Knight previously objected to unseaworthiness claims of injured passengers on the ferry, and Magistrate Judge Adams recommended their dismissal on May 4, 2026, with Judge Mizelle dismissing them on May 19, 2026.
Judge held that laches, not the three-year maritime injury statute of limitation, applied to seaman’s amendment naming new defendants (more than three years after the accident) based on a theory that the seaman was a third-party beneficiary of the defendants’ warranty of workmanlike service; Newland v. Imperial River Transport, LLC, No. 2:24-cv-1258, 2026 U.S. Dist. LEXIS 104311 (W.D. Pa. May 12, 2026) (Bissoon).
Jeffrey Newland, who was employed by Imperial River Transport as a crewmember on the tug M/V MARY ROSE, asserts that he was injured on May 11, 2022 when the tug’s captain lost control of the vessel while maneuvering at an unreasonable speed, resulting in an allision with barges. Newland brought this suit against Imperial River in Pennsylvania federal court under the Jones Act and general maritime law on September 6, 2024. The deadline to amend pleadings or add parties was not set until April 2, 2026 because of issues presented by both parties, including Newland’s competency to proceed. On March 6, 2026, almost four years after the accident (but within the deadline for amendments/addition of parties), Newland sought leave to file an amended complaint, adding two defendants (Campbell Transportation and CTC Liquid Services) whose rigging broke at the time of the allision. Newland alleged that the rigging defendants were under contract with Imperial River and that Newland was a third-party beneficiary of the warranty of workmanlike service owed by the rigging defendants that was breached when the rigging broke. Imperial River objected to the amendment, claiming that it was futile because the action was time barred by the three-year statute of limitations for maritime injury claims (Section 30106). Chief Judge Bissoon did not believe that the amendment was futile, however, because the new claims were brought for breach of an implied contractual warranty (as a third-party-beneficiary), which was not a tort cause of action. Thus, the doctrine of laches applied, which presumes the case is timely if filed within the analogous local statute of limitations. As the limitation period in Pennsylvania for express and implied contracts is four years, the action was presumably timely, subject to a showing of undue prejudice or delay. As the delayed proceedings were just beginning, Chief Judge Bissoon allowed the amendment.
Delay in request to transfer federal case to the division where the incident occurred resulted in denial of the request in the suit brought by a Coast Guard crewmember (constructing a navigation aid) who was injured from the wake of a passing vessel; defendants’ request to designate the Coast Guard as a responsible third party under state law (to reduce their proportionate fault) was denied; crewmember and his wife were not entitled to recover non-pecuniary damages against a non-employer third-party tortfeasor; fact questions on the liability of the vessels resulted in the recommendation of denial of motions for summary judgment of the crewmember and defendants; Magistrate Judge excluded portions of the life care plan with respect to lifelong occupational therapy and psychiatric/psychological care; Harney v. Maersk A/S, No. 4:25-cv-392, 2026 U.S. Dist. LEXIS 105469, 197820, 196864 (S.D. Tex. May 13, June 2, July 15, 2026) (Ho).
Recommendation Responsible Third Party
Recommendation Summary Judgment
United States Coast Guard Petty Officer Gene Harney was engaged in constructing a navigation aid in the Houston Ship Channel on the Coast Guard Cutter HATCHET, which was “spud-in” and anchored next to the navigation aid. The MONTE ROSA, a container ship operated by Maersk and owned by A.P. Møller, passed the HATCHET, and the wake threw the HATCHET against the navigation aid, crushing Harney’s arm. Harney and his wife brought this suit in federal court in the Houston Division of the Southern District of Texas against Maersk and Møller based on diversity, and against the MONTE ROSA, based on admiralty. Almost nine months later, the defendants moved to transfer the case to the Galveston Division because the incident occurred in that division, the HATCHET’s operational base, crew, and key documents are in that division, the Harneys reside in Galveston, and many of the medical providers are located in that division. The Harneys objected, noting that the attorneys for the parties are located in Houston, the pilot on the MONTE ROSA is a Houston pilot, and the MONTE ROSA is not present in Galveston. Although the convenience factors slightly favored transfer, Magistrate Judge Ho held that the delay in seeking transfer weighed strongly against transfer and declined to transfer the case.
The defendants sought to designate the Coast Guard as a responsible third party under the Texas proportionate responsibility statute, assuming that the statute would apply to a case brought under the court’s diversity jurisdiction. The Harneys answered that the statute did not apply because it is procedural, and Magistrate Judge Ho requested briefing whether the state law should apply in a maritime action. Magistrate Judge Ho began by explaining that, when jurisdiction over maritime claims is premised on diversity, “general maritime law nonetheless governs those claims both procedurally and substantively” and that the federal court may apply state law only to “fill the gaps” of maritime law and when the state law is “not hostile to the characteristic features of the maritime law or inconsistent with federal legislation.” The defendants characterized the Texas procedure as a “procedural designation device” that filled a gap in maritime comparative fault principles without altering substantive maritime law. Even if it were procedural (Magistrate Judge Ho considered it to be state substantive law), the argument was “self-defeating” because the court would still apply the Federal Rules of Civil Procedure “as it does in every diversity case.” Magistrate Judge Ho also reasoned that Texas’ proportionate responsibility statute would undermine maritime joint and several liability principles by allowing the defendants to reduce their liability by a percentage of responsibility attributed to a responsible third party (citing the principle from McDermott v. AmClyde that joint and several liability was not abrogated when the Supreme Court enacted proportionate fault in Reliable Transfer (“courts across the nation have refused to allow the apportionment of fault to non-parties in maritime suits”). Therefore, Magistrate Judge Ho recommended denial of the defendants’ attempt to designate the Coast Guard as a responsible third party (the parties did not object to the recommendation).
The defendants then moved for partial summary judgment that the general maritime law prohibits Harney, a seaman, from recovering non-pecuniary damages against a non-employer third-party tortfeasor and that his wife’s derivative claims for non-pecuniary damages were similarly prohibited (based on the Fifth Circuit’s Scarborough v. Clemco decision). The Harneys argued that some district courts had questioned the continuing validity of Scarborough after the Supreme Court’s Townsend decision, but Magistrate Judge Ho was not free to disregard the “binding force” of Scarborough, particularly after the en banc decision of the Fifth Circuit in McBride “strongly signals that Scarborough’s prohibition of non-pecuniary and punitive damages remains good law.” Accordingly, Magistrate Judge Ho recommended dismissal of all non-pecuniary damage claims. The Harneys moved for partial summary judgment that the MONTE ROSA’s violation of four Coast Guard regulations rendered the defendants liable for negligence per se and triggered the presumption of causation from THE PENNSYLVANIA Rule. The defendants presented facts and opinions that created a fact question, and Magistrate Judge Ho recommended denial of the motion. The Harneys also sought partial summary judgment on the extremis doctrine, asserting that any negligence by the HATCHET resulted from an emergency situation created by the MONTE ROSA, but Magistrate Judge Ho found a fact question whether the HATCHET breached its duty to maintain a proper lookout. The defendants also moved for summary judgment, asserting that the MONTE ROSA exercised reasonable care, its wake was not unusual, and that the actions of the HATCHET were a superseding cause. As with the Harneys’ motion, the fact issues kept Magistrate Judge Ho from granting summary judgment.
The parties then filed motions with respect to experts. The defendants moved to exclude the opinions of Dr. S.R. Parthasarathy, a Physical Medicine and Rehabilitation and Pain Medicine Specialist, who prepared a life care plan for Harney’s future medical treatment and expenses (a total of $1,181,803.12). Magistrate Judge Ho denied the request except with respect to the recommendation for lifelong occupational therapy and psychiatric/psychological care, reasoning that Dr. Parthasarathy failed to explain the basis for the recommendation so that Magistrate Judge Ho could not find that he reliably applied his methodologies to the facts of this case. The defendants also argued that the award of future medical expenses must be discounted to present value, but the failure of Dr. Parthasarathy to do so did not warrant exclusion, as the discount can be performed by an economist or by a jury instruction. The Harneys objected to the defendants’ rebuttal expert, Jennifer Pavlik, who was engaged to assess whether the recommendations in the life care plan are supported by the medical records and opinions of the treating physicians. The Harneys argued that Pavlik, who is a Masters-level Certified Rehabilitation Counselor and Certified Life Care Planner and not a physician, was not qualified. Magistrate Judge Ho answered that, as a non-physician life care planner, Pavlik is not qualified to opine about the necessity of medical treatment but was qualified to testify about future medical care based on reports and information supplied by experts. Thus, Magistrate Judge Ho declined to exclude the opinions about what portions of the life care plan are supported by the medical evidence.
Magistrate Judge recommended that reports of 36 slips and falls in the café on the cruise line’s ships provided notice even though the cruise line did not take corrective measures with respect to those incidents; whether the cruise line breached its duty by not cleaning a spill or warning of the spill that occurred 20 seconds before the passenger slipped presented a question to be resolved by the fact finder; Baltzer v. Royal Caribbean Cruises, Ltd., No. 1:25-cv-20883, 2026 U.S. Dist. LEXIS 105881 (S.D. Fla. May 13, 2026) (Augustin-Birch).
Lynne Baltzer, a passenger on the FREEDOM OF THE SEAS, slipped and fell on a wet spot inside the Windjammer Café on the ship. Baltzer brought this suit in Florida federal court against the cruise line with counts for negligent maintenance and negligent failure to warn, and the cruise line moved for summary judgment that it did not have notice of the wet spot and that it did not breach any duty. Baltzer argued that she established notice through the testimony of the cruise line’s corporate representative that the Windjammer Café is a buffet area where passengers carry plates and cups and where it is more likely that someone will spill something than in areas where passengers are not carrying food and beverages. The representative added that the crewmembers are tasked with monitoring the decks to make sure nothing is spilled and that there is a clean-up station near the café. Baltzer also cited the cruise line’s “Own The Spill” policy requiring all crew to be willing to assist in cleanup, and she cited 36 slip-and-fall incidents in the café (with 15 on the FREEDOM OF THE SEAS). The cruise line did not argue that the incidents lacked substantial similarity and instead argued that constructive knowledge could not be imputed because there was no evidence that the cruise line took corrective measures in response to the reports. Magistrate Judge Augustin-Birch answered that the cruise line advocated for a requirement that the case law does not impose and recommended denial of the summary judgment with respect to the notice argument. In support of its argument that it did not breach any duty, the cruise line cited the CCTV footage that revealed another passenger spilled something on the deck approximately 20 seconds prior to the incident and that there was no evidence of any crewmembers in the immediate vicinity of the spill. The cruise line argued that it was unreasonable to expect it to inspect and clean the spot within that 20-second period or to warn of its presence. Magistrate Judge Augustin-Birch summarily rejected the argument, stating that breach of duty and adequacy of warning are fact questions that are within the province of the jury. The cruise line also contended that there were no work orders reflecting that the flooring was in need of repairs, but Magistrate Judge Augustin-Birch considered there to be a fact question whether there was a need for repair in view of the number of prior incidents involving slips and falls in the café.
Court declined to allow late indemnity/contribution claim in limitation action after lifting the stay four years earlier; In re River Construction Inc., No. 4:22-cv-2413, 2026 U.S. Dist. LEXIS 122687 (S.D. Tex. May 13, 2026) (Bennett), recommendation adopted, 2026 U.S. Dist. LEXIS 120024 (S.D. Tex. June 1, 2026) (Hanen).
Russell Marine contracted with Contanda Terminals for dredging and construction of dock facilities at Contanda’s property along the Houston Ship Channel. Russell Marine’s dredging operations resulted in a bulkhead wall failure, and River Construction was tasked with repairing the original wall. Russell Marine alleges that River Construction negligently performed work from its crane barge RC-100, and Russell Marine brought a suit against Contanda in state court in Houston. Contanda asserted a counterclaim against Russell Marine, and Russell Marine brought a third-party action against River Construction in response to the counterclaim. River Construction filed this limitation action in Texas federal court for the RC-100. Russell Marine filed a claim in the limitation action; River Construction filed a counterclaim for indemnity/contribution against Russell Marine for any judgment that may be awarded in favor of Contanda as well as a Rule 14(c) demand (tendering contractor Lloyd Engineering for Contanda’s claim against River Construction) and a Rule 14(c) demand (tendering Russell Marine for Contanda’s claim against River Construction). The only parties who filed timely claims in the limitation action were Contanda and Russell Marine. The court dismissed Contanda’s claims for contribution, indemnity, and attorney fees on the ground that Contanda did not assert a direct liability claim and the contribution/indemnity claims were unripe claims that could not ripen unless the pleadings change. The court stayed the limitation action so that the dispute could proceed in state court. A year later, Contanda filed a counterclaim in state court for breach of contract and negligence in addition to contribution/indemnity. Contanda then sought to reopen the limitation action and to re-establish the limitation injunction, prohibiting claims from being filed against River Construction or the RC-100 outside the limitation action. The court agreed, and Contanda sought leave to file an amended claim asserting claims for negligence and breach of contract against River Construction. River Construction argued that granting leave would cause “an overwhelming amount of prejudice” because the case was litigated in state court for years with only the claims of Russell Marine against River Construction. Magistrate Judge Bennett noted River Ventures’ argument that it had lost the ability to seek contribution from potentially liable third parties in the state proceeding, but he did not believe that Contanda met its burden to establish good cause because it did not explain why it could not have filed the claim nearly four years earlier, before the deadline to file claims. Therefore, Magistrate Judge Bennett recommended denial of the motion, and Judge Hanen agreed and adopted the recommendation.
District Judge found the Ordinance of the Town of Bar Harbor Maine, limiting the number of passengers who may disembark from cruise ships, placed an unreasonably excessive burden on interstate commerce in relation to the “putative local benefits” with respect to all months except the peak summer months of July and August and declared the ordinance unconstitutional except for the peak months; Association to Preserve and Protect Local Livelihoods v. Town of Bar Harbor, No. 1:22-cv-416, 2026 U.S. Dist. LEXIS 107576 (D. Maine May 15, 2026) (Walker).
“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.” See October 2025 Update.
On remand, Chief Judge Walker found that the Ordinance’s 1000-passenger cap was not clearly excessive in relation to its local benefits during the peak summer tourism season; however, he found that it was clearly excessive in relation to the shoulder seasons. Therefore, he declared the Ordinance unconstitutional and unenforceable in all months other than July and August.
Production operator was a borrowed servant of the platform owner, but there was a fact question whether the cook was a borrowed servant; contractual indemnity claim was premature because the LOIA applied and defense/indemnity could not be determined until fault was adjudicated; contractual choice of Louisiana law was valid regardless of whether the contract for services on a platform in Louisiana water was maritime or subject to state law, so the Judge denied non-contractual contribution and indemnity claims between the parties under Louisiana law; In re Texas Petroleum Investment Co., No. 2:24-cv-2344, 2026 U.S. Dist. LEXIS 107615, 108512, 108614 (E.D. La. May 15, 17, 2026) (Vitter).
Opinion Non-Contractual Indemnity and Maritime Contract
Texas Petroleum Investment Co. owns the South Pass Block 24 platform located in Louisiana coastal waters. It also owns the crewboat LA 9395 that was used to transport workers from the platform to the dock in Venice, Louisiana. The vessel was carrying David Hayes, an employee of The Production Group (that supplied labor for Texas Petroleum Investment’s operations on the platform), and George Walcott, an employee of Taylors International Services (that also supplied labor for Texas Petroleum Investment). Hayes was operating the vessel when it allided with a submerged obstruction on inland waters in Plaquemines Parish, Louisiana, resulting in an injury to Walcott. Petroleum Investment filed this limitation action in federal court in Louisiana, and Walcott filed a claim. The Production Group and Hayes also asserted claims for non-contractual indemnity and contribution as well as claims for contractual defense and indemnity pursuant to a Master Service Agreement. Walcott moved to lift the stay in the limitation action as a single-claimant situation with stipulations to protect Petroleum Investment’s rights in the limitation action. Texas Petroleum Investment responded that the action was no longer a single-claimant proceeding and that lifting the stay was inappropriate. Chief Judge Vitter explained that the caselaw in the Fifth Circuit is clear that “Parties seeking indemnification and contribution from a shipowner must be considered claimants within the meaning of the Limitation Act.” The failure of The Production Group and Hayes to join in the stipulations was “fatal” to the motion to lift the stay because all claimants must enter into stipulations when the value of the claims exceeds the value of the vessel ($28,000 in this case). Accordingly, Chief Judge Vitter declined to lift the stay.
Walcott also filed a motion seeking to bifurcate liability and limitation issues (for a bench trial) so that a jury trial could be held in a state or federal venue of his choosing on the issue of damages in the event limitation of liability is denied. Chief Judge Vitter noted that the Fifth Circuit has cautioned that the issue to be tried separately must be so distinct and separable that trial of it alone may be had without injustice. She did not believe that Walcott carried his burden to show how convenience would be advanced or that he would be prejudiced (he simply argued that bifurcation is the “preferred approach” of courts in the Fifth Circuit). Chief Judge Vitter also did not believe that bifurcation would expedite or economize the litigation, explaining that the issues of liability, causation, and damages involve substantial amounts of overlapping evidence. Therefore, she declined to order bifurcation.
Walcott filed a cross-claim against The Production Group, asserting that it was vicariously liable for the allegedly negligent conduct of Hayes in navigating the vessel. Walcott also asserted that The Production Group was liable for negligent hiring, training, and supervision of Hayes. The Production Group did not plead a borrowed servant defense in its answer. After taking the deposition of Walcott, who testified that Hayes drove the boat when he was on it, The Production Group moved to assert a borrowed-servant defense that The Production Group was shielded from vicarious liability for its payroll employee, Hayes, because he was acting as a borrowed servant of Texas Petroleum. The Production Group explained that the application of the defense “crystalized” with the suggestion from Walcott’s testimony that Texas Petroleum Investment had control over the actions of Hayes. Chief Judge Vitter acknowledged that it was plausible that The Production Group could have realized the potential viability of the defense from the allegations asserted against it, but she did not find it unreasonable that it “waited for an adequate factual basis to assert the affirmative defense.” The fact that it discovered the factual basis to assert the defense after the deadline to amend pleadings weighed in favor of finding good cause, and Chief Judge Vitter permitted the amendment.
After Chief Judge Vitter allowed The Production Group to assert a borrowed-servant defense, Texas Petroleum Investment asked for leave to assert a borrowed servant defense in answer to the Walcott claim. Walcott argued that the amendment was untimely and would be prejudicial because, if successful, the new defense would preclude recovery. Magistrate Judge Currault disagreed, explaining that it did not fundamentally alter the nature of the case and should not require additional discovery beyond that which would be necessary for the Production Group defense. Accordingly, she granted leave for Texas Petroleum Investment to amend its answer to the Walcott claim. See March 2026 Update.
Texas Petroleum and The Production Group (and David Hayes) filed motions for summary judgment on borrowed servant status, and Chief Judge Vitter granted the motion for The Production Group and denied the motion for Texas Petroleum. Chief Judge Vitter began with the motion filed by The Production Group that Hayes was the borrowed servant of Texas Petroleum, using the nine Ruiz factors. Taylor employee Walcott objected, claiming that there were fact questions on the factors and that the MSA disclaimed any employment relationship between Texas Petroleum and Hayes. Chief Judge Vitter reviewed each of the Ruiz factors and concluded that The Production Group had no supervisory personnel at the facility and that the Texas Petroleum Field Foreman controlled Hayes’ daily activities, his work shift, and his work instruction. Hayes was performing Texas Petroleum’s work, the work was performed pursuant to an MSA that contained a provision purporting to prohibit borrowed servant status, Hayes acquiesced to working within Texas Petroleum’s operational structure, Hayes’ employment with The Production Group was effectively terminated because it did not perform any significant oversight of Hayes while he was on the platform, Texas Petroleum supplied all the tools for Hayes’ work, Hayes worked at the facility for numerous years, Texas Petroleum had the authority to remove Hayes from the assignment with Texas Petroleum, and Texas Petroleum compensated The Production Group for the hours worked by Hayes so that The Production Group could pay Hayes. As eight factors (including the factor of control) weighed in favor of Hayes being a borrowed servant of Texas Petroleum, Chief Judge Vitter held that Hayes was the borrowed servant of Texas Petroleum. Chief Judge Vitter then considered Texas Petroleum’s motion asserting that Walcott, cook on the platform, was a borrowed servant of Texas Petroleum. Texas Petroleum set Walcott’s schedule, answered his work-related questions, and purchased the groceries. However, Walcott came up with his own menu, cooked the meals the way he wanted to cook them, and cleaned the galley without supervision. No one from Texas Petroleum told him how to perform that work. Finding a fact question with respect to the cook, Chief Judge Vitter explained the difference from Hayes: “David Hayes, a Production Operator, was under the control of TPIC while located on TPIC’s SP-24—a production facility. George Walcott, however, was a catering hand assigned to work on SP-24. The Court agrees with another Section of this Court that ‘[c]ooking and cleaning cannot be said to be an essential aspect of oil and gas production.’”
Chief Judge Vitter then considered motions addressing the contractual obligations of the parties and their non-contractual indemnity/contribution obligations. Texas Petroleum and Taylors International (employer of Walcott), filed motions related to the defense and indemnity sought by Texas Petroleum against Taylors. As the Louisiana Oilfield Indemnity Act was applicable to the contracted work on the platform, and the Louisiana Supreme Court has held that the obligation cannot be determined until there has been a judicial finding that the indemnitee is liable or that the charges against it were baseless, Chief Judge Vitter held that the motions were premature and non-justiciable until the underlying issue of liability of Texas Petroleum was determined. Chief Judge Vitter next considered the motion for summary judgment filed by Texas Petroleum on The Production Group’s claim for contribution/indemnity under the general maritime law against Texas Petroleum. Texas Petroleum argued that Louisiana law applied to the dispute and that no contribution or indemnity is allowed under Louisiana law. Texas Petroleum cited the choice of law provision in the MSA between Texas Petroleum and The Production Group for Louisiana law and argued that the provision was applicable regardless of whether the LOIA voided the contractual indemnity in the contract. Chief Judge Vitter reasoned that she first had to decide if the contract was maritime or not. The platform and accident are not on the outer Continental Shelf, so Chief Judge Vitter looked at the issue as simply whether the choice-of-law provision was valid under maritime law or Louisiana law. As the provision was valid under either choice, she applied Louisiana law to the contribution/indemnity claims and denied the claims because they are not permitted under Louisiana law.
Bank that held preferred ship mortgage on vessel was allowed to file a late intervention in a suit in which a lienor arrested the vessel and to have priority for its mortgage, but the lienor was given priority for the custodia legis charges; Harbour Towne SMI Opco, LLC v. M/Y “LADY CHER L C’s,”, No. 0:25-60672, 2026 U.S. Dist. LEXIS 109213 (S.D. Fla. May 17, Aug. 4, 2026) (Damian).
James Muska entered into a contract with Harbour Towne SMI Opco to provide dockage, electricity, and other necessaries for his vessel M/Y LADY CHER L C’s, a 55-foot Ocean Odyssey motor yacht. Harbour Towne was not paid and brought this suit in federal court in Florida against the vessel, claiming it was owed $61,059. The vessel was arrested on May 2, 2025, and, on July 14, 2025, the mortgagee, RBC Centurion Bank, filed a claim for its mortgage in the amount of $358,608.20 plus interest. The owner of the vessel did not file a claim of owner, and Towne Harbour moved for a sale of the vessel on October 10, 2025 and for a default judgment on October 15, 2025. Judge Damian ordered the sale of the vessel with all properly filed and perfected maritime liens and interests permitted by law to be asserted against the vessel, in rem, attaching to the net proceeds. In her opinion of May 17, 2026 (entered on May 18), Judge Damian held that Towne Harbour had established that it had a lien for necessaries. Judge Damian did not rule on the amount of the lien or whether Towne Harbor was entitled to custodia legis expenses as the vessel had not been sold. In her opinion, Judge Damian noted that the Bank appeared to be asserting a claim against the vessel, but it had not filed an intervening complaint, nor had it moved to present its claim pursuant to Local Admiralty Rule E(2). On June 22, 2026, the Bank filed a motion to intervene to appear as a plaintiff. Harbour Towne complained that the Bank “has avoided requesting this Court for a Warrant of Arrest, serving the Vessel, paying the US Marshal and obtaining and paying for any part of a Substitute Custodian for the Vessel.” Harbor Towne added that on the eve of sale/trial, the Bank was seeking to “suddenly become a Plaintiff and avoid paying the cost of keeping the boat this entire time.” Judge Damian granted the motion to intervene on July 9, 2026, and the intervention was deemed filed as of July 8, 2026. The successor to the owner of the vessel agreed to an entry of foreclosure judgment in favor of the Bank in the amount of $388,141.97 (with additional interest), and Town Harbour and the Bank both sought to credit bid at the sale. Based on the agreement of the parties, Judge Damian entered an amended order with respect to the sale of the vessel on August 4, 2026, granting judgment to Harbour Towne for its costs as substitute custodian in the amount of $132,562.22 and for its lien in the amount of $52,759.06. Harbour Towne was allowed to credit bid at the sale, as substitute custodian, up to the amount of $132,562.22 (but was not allowed to combine that amount with its lien claim in an aggregate bid). The Bank was allowed to credit bid up to $388,141.97, the secured debt on the ship mortgage. Judge Damian accepted the priority as: 1) substitute custodian costs; 2) the Bank’s secured mortgage debt; and 3) Town Harbour’s maritime lien.
Breach of warranty (unrelated to the damage to the vessel) and material misrepresentations (violation of uberrimae fidei) resulted in Judge declaring policy on yacht to be void ab initio; Accelerant Specialty Insurance Co. v. Zubigaray, No. 1:24-cv-23401, 2026 U.S. Dist. LEXIS 109134 (S.D. Fla. May 18, 2026) (Altman).
In 2023, Jorge Zubigaray applied for insurance on his 62-f00t Azimut motor yacht. He answered “No” to the question whether he or a named operator had been convicted of or pleaded no contest to a criminal action and answered “N/A” to the question whether he had any violations/suspensions (including auto) in the past five years. Accelerant Specialty Insurance Co. and Texas Insurance Co. issued a yacht insurance policy to Zubigaray with hull coverage of $600,000 for the vessel for the period from July 13, 2023 to July 13, 2024. The policy included a survey warranty that all recommendations in a requested survey of the vessel must be completed prior to a loss or the insurance is void. Zubigaray represented that all recommendations on a 2021 survey had been completed, but Zubigaray had not completed one involving an electrical outlet and another regarding a life raft. His representations about convictions and citations were not accurate as he was arrested and convicted of perjury, fleeing law enforcement, aggravated assault, and extortion in 1997 (serving two years in prison). He was arrested and convicted of possession of a firearm by a convicted felon in 2004 and served a second term in prison between 2004 and 2010. He was cited and convicted for numerous auto violations in 2018, 2019, 2020, and 2021, including reckless driving. On May 10, 2024, the insured vessel ran aground under the operation of Zubigaray near the Port of Miami in Fisherman’s Channel off Dodge Island, and Zubigaray made a claim that included repair costs and salvage. During the investigation, the insurers determined that Zubigaray breached multiple warranties in the policy, including the survey compliance warranty (as well as the doctrine of uberrimae fidei). The insurers brought this action in Florida federal court against Zubigaray seeking a declaratory judgment that the policy was void from its inception and that there was no coverage for the claim. The insurers moved for summary judgment, and Judge Altman began with the choice-of-law provision for New York law in the absence of entrenched admiralty law. Following the Supreme Court’s decision in Raiders Retreat, Judge Altman looked first to maritime law and, in absence of an entrenched precedent, to New York law. Rejecting the argument that Zubigaray did not know he had to certify that he had remediated every recommendation in the marine risk survey, Judge Altman held that Zubigaray had unambiguously breached the warranty. As the policy provided that the breach would void coverage, whether or not the loss is related to the warranty, and as New York law permits marine insurers to deny coverage for breach of warranties, regardless of causation, Judge Altman held that the policy was void as a matter of law. Judge Altman then considered the defense under the doctrine of uberrimae fidei for the misrepresentations made by Zubigaray, holding that the misrepresentations and non-disclosures were material to the decision to insure the vessel and were grounds to void the policy (Judge Altman also declined to impute the misrepresentations on the application to the insurers from the broker engaged by Zubigaray, noting that Zubigaray referred to his broker of many years as “my agent”). Accordingly, Judge Altman held that the insurers were entitled to a declaration that the policy was void ab initio.
Judge dismissed passenger’s complaint without prejudice for combining liability theories in all of the counts; Foulkes v. Princess Cruise Lines, Ltd., No. 1:25-cv-24551, 2026 U.S. Dist. LEXIS 110455 (S.D. Fla. May 19, 2026) (Gayles).
Wendy Foulkes, a passenger on the MAJESTIC PRINCESS, which was anchored off Cabo San Lucas, Mexico, was injured on a tender that transported passengers to the port of call. She alleges that, as she tried to take her seat, the tender suddenly moved, causing her to be thrown to the deck. As she tried to get up, the vessel rocked again, causing her to fall a second time. Foulkes brought this suit in Florida federal court against the cruise line with counts for vicarious liability, failure to warn, negligent operations, and general negligence, based on the assertion that the cruise line failed to properly secure the tender based on its size and the weather and sea conditions. The cruise line moved to dismiss the complaint because it commingled allegations in the different counts. Judge Gayles agreed, noting that the first count combined claims of direct and vicarious liability, alleging that the cruise line had a duty to provide reasonable care while asserting that the cruise line was liable for the acts of its crew. That count also contained distinct causes of action for failure to maintain and failure to warn. The count titled Negligent Failure to Warn combined allegations of failure to warn, failure to train, and failure to supervise. The general negligence count combined negligent maintenance, failure to warn, and failure to train, supervise, and monitor. Judge Gayles dismissed the complaint without prejudice and with leave to amend.
Suit brought by operator of fishing boat in state court against owner of wellhead in navigable waters that alleged violation of the Code of Federal Regulations and violation of the plaintiff’s free transit of navigable waters did not present a federal question that allowed removal of the suit to federal court; Dufrene v. Pinnacle Energy, LLC, No. 2:26-cv-645, 2026 U.S. Dist. LEXIS 112603 (E.D. La. May 21, 2026) (Morgan).
Curt Felix Dufrene, Jr. was navigating his fishing vessel on a navigable waterway in Plaquemines Parish, Louisiana, when the vessel allided with a wellhead owned and operated by Pinnacle Energy. Dufrene brought suit against Pinnacle in Louisiana state court, asserting that Pinnacle failed to mark and light the wellhead in violation of federal law. Dufrene specifically alleged a violation of Title 33 of the United States Code of Federal Regulations that exposed Dufrene and maritime interests to harm while exercising “free transit of this navigable waterway.” He brought negligence claims under Louisiana law and maritime law, and Pinnacle removed the case to federal court based on federal question and admiralty jurisdiction. Pinnacle argued that Dufrene specifically claimed that Pinnacle violated Title 33 of the Code of Federal Regulations, so his claims arose under federal law. Dufrene moved to remand the case to state court, and Judge Morgan agreed, stating: “because a federal regulation cannot itself create a cause of action, federal law does not create Plaintiff’s causes of action.” Judge Morgan then considered whether Dufrene’s right to relief depended on resolution of a substantial question of federal law, and she held that the reference to federal regulations as the basis of an element of the claim was insufficient to raise a federal issue. Noting that Dufrene alleged a claim under state law, Judge Morgan added that the reliance on the federal regulation did not raise a “substantial federal issue” and that exercising federal jurisdiction over the suit would “disrupt the balance of federal and state judicial authority.” Therefore, Judge Morgan remanded the case to state court.
Passenger’s negligence counts with respect to alleged sexual assault by crewmember on cruise ship were not duplicative of the strict liability counts, sufficiently identified crewmembers for vicarious liability, were not impermissible government-compelled speech with respect to warning about sexual assault, and included sufficient notice to the cruise line from the crewmember’s sexually explicit and aggressive social media posts; L.M. v. Carnival Corp., No. 1:25-cv-21095, 2026 U.S. Dist. LEXIS 112829 (S.D. Fla. May 21, 2026) (Dimitrouleas).
L.M., a passenger on the CARNIVAL MAGIC, introduced herself to crewmember Jack Deggon because she thought he was handsome. After he finished his shift, L.M. agreed to go to his cabin, and they engaged in sexual activity that was consensual to some degree. There was a dispute about the extent to which the actions were consensual, and L.M. brought this action in Florida federal court against the cruise line with nine causes of action: 1) strict liability for sexual assault/battery/rape; 2) strict liability for false imprisonment; 3) strict liability for intentional infliction of emotional distress; (4) vicarious liability for failure to warn/prevent sexual assault/react; (5) direct liability for failure to warn; 6) direct liability for failure to maintain the premises/negligent security; 7) direct liability for negligent training; 8) direct liability for negligent selection and hiring; and 9) direct liability for negligent retention. The cruise line moved for summary judgment on counts 3 to 9 (agreeing that there are fact questions on the first two counts), and L.M. did not oppose summary judgment on the third count. Therefore, Judge Dimitrouleas addressed the viability of counts 4 to 9. The cruise line argued that the counts were improper because they were duplicative of counts 1 and 2. Judge Dimitrouleas explained that cruise lines are strictly liable for the intentional torts of their crewmembers under federal maritime law and that negligence claims are improper when they are “simply a recasting” of the intentional torts. However, Judge Dimitrouleas considered the negligence counts to allege different conduct that related to the same facts as the strict liability claims and could be pleaded in the alternative. The cruise line objected to count 4, vicarious liability for failure to warn/take action, on the ground that L.M. did not identify a specific crewmember who breached a duty; however, Judge Dimitrouleas answered that L.M. identified three possible people who may have breached a duty, Deggon’s roommate, who entered the cabin during the incident, an African-American female in the hallway who witnessed Deggon pull L.M. back into the hallway and forced her to kiss him, and a male crewmember in the hallway who was used as a pretext to hold L.M. in the cabin. The cruise line objected to count 5, failure to warn, on the ground that requiring warnings about sexual assault would impermissibly compel commercial speech and because the warning would not have altered L.M.’s behavior. Judge Dimitrouleas did not believe that there was government-compelled speech, noting that the cruise line did not cite a case applying government-prescribed disclosures to a common-law failure-to-warn case, and he found a fact question with respect to causation. The cruise line objected to count 6, negligent security, on the ground that it had no notice of any violent propensities of Deggon, but Judge Dimitrouleas believed that Deggon’s sexually explicit and aggressive social media posts were sufficient to put the cruise line on notice of the particular risk in this case. The cruise line objected to count 7, failure to train, on the ground that its training was sufficient as a matter of law; however, L.M.’s expert opined to the contrary, and Judge Dimitrouleas declined to dismiss the count. Finally, the cruise line argued that the negligent hiring and retention counts should be dismissed because the background check on Deggon “came back clean.” As the background check was nine months stale when Deggon was hired, as the cruise line hired him when he was 19 years old, in violation of its policy that requires employees be at least 21, and in light of the social media posts, Judge Dimitrouleas declined to dismiss the counts.
On the order of the District Judge, the Magistrate Judge recommended that the Bank that obtained a judgment on first preferred ship mortgages and received the proceeds (less than its mortgages) from the sale of the venture, could amend the Final Judgment to add attorney fees, custodia legis and related expenses, and interest; Century Bank v. M/V SUMMER 69, No. 0:23-cv-61616, 2026 U.S. Dist. LEXIS 113953 (S.D. Fla. May 22, 2026) (McCabe), recommendation adopted, (S.D. Fla. Sept. 18, 2026) (Singhal).
Century Bank brought this action, in rem, to foreclose on preferred ship mortgages on the M/V SUMMER 69 (a 130-foot luxury yacht) and the M/V 689 (a 42-foot center-console sportfishing boat). The complaint, filed in federal court in Florida, only named the vessel and did not name the owner/mortgagor, Biology Research, LLC. Biology Research filed a limited claim of owner. Judge Singhal granted summary judgment against the vessels in the amount of $6,438,103.31, and the vessels were sold at auction, receiving $5,600,000 for the SUMMER and $295,000 for the 689, with a payment of $5,837,498.34 after deducting the Marshal’s commissions and costs. Later, the Bank sought to modify the prior judgment with additions for the deficiency between the judgment and sale price, the Marshal’s commissions, costs, and attorney fees (a total of $2,039,191.90). Magistrate Judge McCabe denied the motion, explaining that the bank had the option to sue the vessels, in rem, and the mortgagor, in personam. However, it only chose to name the vessels. He reasoned: “By choosing to limit the Complaint solely to in rem claims, however, Plaintiff limited its relief solely to the value of the in rem vessels. Given that the vessels have already been sold at auction, no further relief can be granted. Stated differently, the Court cannot enter a deficiency judgment because there are no more defendants left in the case.” Magistrate Judge McCabe did not express an opinion whether the bank could obtain a deficiency judgment in a separate proceeding against the mortgagor or whether the bank could, at this late date, add the mortgagor to this suit. Therefore, Magistrate Judge McCabe recommended that the bank’s motion be denied as moot. See July 2025 Update.
The bank appealed the recommendation, and Judge Singhal disagreed with Judge McCabe’s reasoning. Judge Singhal noted that the court had retained jurisdiction to award attorney fees, court costs, and custodial costs incurred by the bank through the interlocutory sale. He added that the departure of the res from the district did not necessarily moot the case, finding no settled admiralty rule that the court must have continued control of the res to have jurisdiction. Instead, he stated that the issue was whether the ruling would be “useless.” Judge Singhal did not believe that the ruling would be useless because a deficiency judgment could be pursued in personam in state court. Therefore, he ordered Magistrate Judge McCabe to schedule an evidentiary hearing for the bank to establish its damages. See September 2025 Update.
In response to the order from Judge Singhal, Magistrate Judge McCabe recommended that the Final Judgment be amended. He recommended that the judgment be reduced by the combined sales price of the vessels, $5,895,000; that the commission charged by the Marshal to sell the vessels be added to the judgment; and that additional taxable costs be added to the judgment. Magistrate Judge McCabe held a hearing over five days to address the Bank’s claim for the addition of $724,328.92 for custodia legis and related expenses while the vessel was in custody. Although the Bank argued that the lien claim should include expenses related to care and maintenance of the vessels, Magistrate Judge McCabe rejected the argument, answering that no lien can attach to a vessel while it is in judicial custody. However, he noted that the custodial court has broad discretion to allow or deny recovery of post-arrest necessaries, guided by two factors: whether the expenditure benefited all claimants and whether there was court approval. The Bank cited the authority given in the ship mortgages for advances, that the bank was authorized to keep the collateral fully insured and in a seaworthy condition, and Magistrate Judge McCabe agreed that the Bank could recover advances out of the sales proceeds just as it is authorized to recover attorney fees. The mortgagor/owner argued that the Bank violated the Court’s Local Admiralty Rule, which requires court approval for non-emergency repairs on arrested vessels, decrying that the Bank made whatever repairs it pleased “in an apparent belief that the mortgages allowed them to do so, regardless of our Local Rules and the District Judge’s authority to supervise custody.” Magistrate Judge McCabe did not believe that the penalty for misconduct should be forfeiture of the right to recover amounts payable under the mortgages but, instead, loss of priority for the expenses to other lienors (a hypothetical penalty as there were no other lienors). Magistrate Judge McCabe recommended an increase in the judgment for $113,388.18 for non-emergency work, $15,729 in storage charges, $63,000 for insurance, $353,700 for the additional 6% brokerage commission paid by the Bank for the sale of the vessels, and $178,511.74 in additional expenses (after reducing the markup of 15% on contractor invoices). The Bank sought to increase the judgment by the amount of $209,278.50 in attorney fees. Magistrate Judge McCabe agreed with the hourly rates for attorneys (between $300 and $350) and the hourly rates for paralegals (between $165 to $195); however, he believed the 688 hours were excessive for including purely administrative tasks; unnecessary, duplicative, or excessive work; and insufficient detail to assess the reasonableness of the entries (after all, the mortgagor did not substantially oppose the complaint, the arrest, or the motion for summary judgment). Accordingly, he recommended a 15% reduction to $177,886.73. Finally, the Bank argued that the rate of interest in the mortgage for default (21%) should be added to the judgment. Magistrate Judge McCabe agreed that interest should be added at that rate until the vessels were sold and the proceeds distributed to the Bank. However, the post-judgment interest rate of 5.19% should apply after the Final Judgment was entered. Both parties objected to the recommendations, but Judge Singhal adopted the recommendations on September 18, 2026.
Judge declined to overturn the jury’s award of damages for negligence of the shipyard to beneficiaries of a shipyard worker who died from mesothelioma from onlooker exposure during the early 1960s, but he remitted the damage award from $6,625,000 to $3,900,000 and added pre-judgment interest under state law; Marcella v. Huntington Ingalls Inc., No. 2:24-cv-780, 2026 U.S. Dist. LEXIS 114998, 15510 (E.D. La. May 26, July 14, 2026) (Ashe).
Ronald Marcella died from mesothelioma that his beneficiaries claim was caused by exposure to asbestos when he worked at Avondale’s shipyard and at his family’s restaurant near the shipyard that was frequented by Avondale employees who carried asbestos fibers on their clothing. Marcella did not directly handle asbestos-containing products while working at Avondale, but his work took him aboard ships and around tradesmen who were cutting block insulation and working with other asbestos-containing products. Marcella’s beneficiaries brought this suit in state court in Orleans Parish, Louisiana against Avondale and other defendants, and Avondale removed the case to federal court based on the Federal Officer Removal Statute, asserting a Boyle government contractor immunity defense and a Yearsley derivative sovereign immunity defense. The beneficiaries moved to remand the case for two reasons. They cited the Eleventh Circuit’s Meadows decision that the federal statute only applies to current, not former federal officers (so as to prevent States from interfering with ongoing federal operations). Judge Ashe disagreed, noting that Meadows was not binding in the Fifth Circuit, was a criminal case that did not involve claims against private entities performing work under the direction of federal officers, had been rejected by another court, and was contrary to the result in the Fifth Circuit’s Latiolais decision that applied to asbestos exposure from decades earlier. The beneficiaries next argued that Avondale’s federal defenses were not colorable because they had been rejected by some courts at the summary-judgment stage. Judge Ashe answered that the issue with respect to removal is only whether the defense is colorable, not whether it will survive a motion for summary judgment. Finding that Avondale had raised a colorable Boyle federal defense, Judge Ashe denied the motion to remand. See July 2024 Update.
After granting summary judgment on the federal defenses, Judge Ashe held a jury trial that found that Marcella’s beneficiaries established that exposure to asbestos while he worked at Avondale was a substantial contributing cause of his mesothelioma and that Avondale’s negligence was a substantial contributing cause of his mesothelioma. The jury also found that Avondale did not establish that any of the suppliers was negligent or distributed a product that was unreasonably dangerous. The jury awarded general damages of $6,625,000 for Marcella’s physical and mental pain and suffering and loss of enjoyment of life. Judge Ashe entered judgment on the verdict but did not mention prejudgment or post-judgment interest. The beneficiaries moved to alter the judgment to include awards of prejudgment interest and post-judgment interest, and Avondale moved for judgment notwithstanding the verdict, a new trial, and, alternatively, a remittitur. Judge Ashe upheld the finding of negligence against Avondale (the beneficiaries disclaimed a strict-liability claim to avoid Avondale’s federal contractor defenses), reasoning that the evidence presented by the beneficiaries demonstrated that the jury could have reasonably found that, in the early 1960s, Avondale knew or reasonably should have known that asbestos was dangerous to its employees, and that Avondale did not take measures to warn its employees about the health risks or take protective measures available to it, such as air sampling or providing dust masks. As Marcella was exposed to asbestos at Avondale as an “onlooker” and was not exposed to asbestos at any other place, Judge Ashe concluded that the breach was the cause-in-fact of Marcella’s mesothelioma. As for the amount of damages, Avondale argued that the award of $6,625,000 was grossly disproportionate in relation to Marcella’s advanced age, underlying health conditions, and limited evidence regarding pain and suffering. Avondale noted that Marcella underwent relatively little medical treatment, with no radiation or chemotherapy, and his evidence of reduction in activity occurred before his symptoms of mesothelioma (just over three months before he passed away). Judge Ashe declined to grant a new trial based on that argument, but he did find that the award was excessive and ordered a remittitur to the highest reasonable award for the case, $3.9 million. Judge Ashe then considered the beneficiaries’ request for interest. He agreed to award post-judgment interest at the federal rate, but Avondale objected to the award of pre-judgment interest under Louisiana law because the case was removed under the Federal Officer Removal Act and not based on diversity. As Judge Ashe granted summary judgment on the federal defenses, he explained that the role of the court was similar to that of a federal court sitting in diversity, and he agreed to award pre-judgment interest under Louisiana law. The beneficiaries then moved for reconsideration of the remittitur, and Judge Ashe rejected it, answering that their view of the remittitur was “skewed” and that there was no error in the court’s application of the maximum recovery rule. The beneficiaries then agreed to the remittitur, and Judge Ashe entered judgment in the amount of $3.9 million plus interest.
Judge enforced arbitration clause in seaman’s employment contract and compelled arbitration of seaman’s claims under the Jones Act and general maritime law; Pacciano v. Centerline Logistics Corp., No. 1:25-cv-2621, 2026 U.S. Dist. LEXIS 141578, 155713 (E.D.N.Y. May 26, June 25, 2026) (Donnelly).
This case presents issues similar to Tucker v. Centerline Logistics, discussed in the September 2026 Update, in which Judge Block of the United States District Court for the Eastern District of Nork enforced an arbitration clause in a seaman’s employment contract and compelled arbitration of a seaman’s claims under the Jones Act and general maritime law.
Nicholas Pacciano applied for a position with Centerline Logistics and received an offer for a deckhand. As part of the acceptance of the job offer, he executed an Arbitration Agreement that provided for arbitration of all claims, disputes, or controversies arising out of his employment relationship (including tort claims) brought under federal or state law. He also signed a Crew Member Agreement, mandating arbitration of all claims arising out of or related to the crewmember’s employment. Pacciano claims that he was injured while working as a deckhand on Centerline’s tug, and he brought this suit in New York federal court against Centerline based on the Jones Act and general maritime law (unseaworthiness and maintenance and cure). Centerline moved to compel arbitration, and Judge Donnelly agreed that the agreements were maritime. Therefore, Judge Donnelly applied maritime law to interpret the contracts. Pacciano objected that the arbitration provision was not enforceable under the Federal Arbitration Act, but Judge Donnelly disagreed, answering that the FAA’s exclusion “does not mean . . . that arbitration provisions in seaman’s employment contracts are unenforceable, but only that the particular enforcement mechanisms of the FAA are not available.” Judge Donnelly also considered the argument that the arbitration agreement was unenforceable as to the Jones Act claims because the Jones Act prohibits a contractual waiver of the right to a jury trial. She answered that the Jones Act “contains no expression of intent to limit the pursuit of its remedies to the judicial forum alone,” explaining that the language that the seaman may, “at his election” maintain an action for damages with right to a jury trial reflects that arbitration is not forbidden as an alternative method of dispute resolution. She quoted the language from the Supreme Court in Mitsubishi Motors that, “so long as the prospective litigant effectively may vindicate its statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent function.” Finally, Judge Donnelly rejected the argument that the agreement was not valid under federal common law (asserting that the agreement was not clear on the scope of the claims within its ambit and that Pacciano did not fully understand the agreement). She found nothing deceptive or ambiguous and granted the motion to compel arbitration. On reconsideration, Pacciano argued that the parties designated New Jersey law to apply to the contract, citing the heading “NJ Binding Arbitration.” Judge Donnelly dismissed the claim, reasoning that the heading was not a choice-of-law provision. She declined to reconsider the previously presented arguments as an attempt to get a “second bite at the apple.”
State suit by an Ecuadorian state-owned transportation entity against Pennsylvania residents involved in a commercial tanker pool, alleging that the defendants were trying to “hijack Ecuador’s state-owned oil shipping business” was removable under the New York Convention and the Panama Convention and was subject to arbitration; Flota Petrolera Ecuatoriana EP v. Sudhaus, No. 2:26-cv-124, 2026 U.S. Dist. LEXIS 116154 (E.D. Pa. May 27, 2026) (Weilheimer).
Ecuadorian state-owned Flota Petrolera Ecuatoriana EP (FLOPEC) charters vessels to export crude oil and import refined products. FLOPEC alleges that a group of Pennsylvania residents (led by Williams S. Sudhaus and David W. Sudhaus) created a scheme through a commercial tanker pool to “hijack Ecuador’s state-owned oil-shipping business and thereby deprive Ecuador of at least $650 million in revenues.” FLOPEC asserts that the Amazonas Tanker Pool was arranged “from complicity with corrupt government officials.” FLOPEC brought this suit in state court in Chester County, Pennsylvania against William and David Sudhaus and others (including companies that participated in the Amazonas Tanker Pool), with claims for tortious interference with business relations, breach of fiduciary duty, aiding and abetting breach of fiduciary duty, unjust enrichment, civil conspiracy, and violations of Ecuadorian civil law. The defendants served a demand for arbitration on FLOPEC and removed the case to federal court based on jurisdiction under the Contention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) and the Inter-American Convention on International Arbitration (the Panama Convention), citing the New York arbitration agreements in the tanker pool contracts. The defendants moved to compel arbitration, and Judge Weilheimer agreed that the disputes arose out of the relationship in the agreements as “the very existence of these contracts is the factual predicate to each of FLOPEC’s claims.” In response, FLOPEC argued that the agreements are not valid because Ecuadorian law requires international arbitration agreements to be approved by the attorney general and because the officials who signed the agreements did not have capacity to enter into the provisions. FLOPEC argued that federal law determined the validity of the arbitration clauses, but Judge Weilheimer disagreed, answering that the courts “should apply ordinary state-law principles that govern the formation of contracts.” The contracts contained clauses selecting New York law to govern the agreement, and Judge Weilheimer held that the language of the agreements was broad enough to encompass the claims and that principles of New York estoppel law were sufficient to require arbitration with defendants who were non-signatories to the agreements. Therefore, Judge Weilheimer granted the motion to compel.
Spa worker’s maritime injury suit against spa operator and cruise line in state court was removable and subject to arbitration under the New York Convention (despite argument that the Saving-to-Suitors Clause precluded removal); Warburton v. OneSpa World (Bahamas) Ltd., No. 1:26-cv-21914, 2026 U.S. Dist. LEXIS 117201 (S.D. Fla. May 27, 2026) (Martinez).
Sabrina Warburton, a citizen of Jamaica, was employed by OneSpa World (Bahamas) as a nail technician in the spa department of the CARNIVAL VISTA. She slipped and fell on the vessel and claims that she presented arbitration claims against OneSpa and the cruise line in accordance with the arbitration provision in her employment contract with OneSpa (arbitration administered by the American Arbitration Association in Nassau, The Bahamas). Warburton asserts that OneSpa and the cruise line failed to respond and waived their right to seek arbitration. Thereafter, she brought this suit against OneSpa and the cruise line in state court in Miami-Dade County, Florida, with claims under the Jones Act and general maritime law. The defendants removed the case to federal court based on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) and moved to compel arbitration. Warburton moved to remand the case to state court, arguing that, as a result of the alleged waiver, the federal court lacked subject-matter jurisdiction over the suit. Judge Martinez disagreed, explaining that the case was removable under the provisions of the Federal Arbitration Act when the four jurisdictional requirements for application of the New York Convention are established (and all were satisfied in this case). He also rejected the argument that the Saving-to-Suitors Clause prevented removal (allegedly preserving her remedy in state court), answering that the Convention provides an independent basis for removal. Judge Martinez then considered the motion to compel arbitration and the argument that the defendants waived their right to arbitrate. The record did not establish that the defendants received Warburton’s request, the defendants sought arbitration as soon as they removed the case, and they never stated an unwillingness to comply with the rules required for arbitration. Accordingly, Judge Martinez granted the motion to compel arbitration.
Judge declined to grant a new trial after awarding damages to vessel owner against charter broker for breach of its fiduciary duties in the collection of charter hire and awarded attorney fees to the owner; R&R Boats, Inc. v. GOL, LLC, No. 2:24-cv-1875, 2026 U.S. Dist. LEXIS 117535, 118681 (E.D. La. May 28, 29, 2026) (Fallon).
We reported in the November 2025 Update the differing results reached by Judge Guidry and Judge Vance of the United States District Court for the Eastern District of Louisiana in cases involving similar issues to this case brought before Judge Fallon of the same court.
In the case decided by Judge Guidry, Offshore Liftboats, which operates crewed vessels for marine transportation in support of oil and gas production, contracted with GOL to broker Offshore Liftboats’ vessels to charterers. The brokerage agreement provided for a fee based on a percentage of the charter hire. Charterers would pay the charter hire to GOL, which would remit the hire (minus the brokerage fee) to Offshore Liftboats. The agreement stated that GOL would not be responsible for the charterers’ non-payment of charter hire, but that GOL would undertake all reasonable efforts to collect the hire (although Offshore Liftboats retained the right to try to collect unpaid invoices directly from the charterer). GOL arranged for charters with Cox Operating, which stopped paying invoices that grew to $3,339,343.78 before Cox Operating sought bankruptcy. Offshore Liftboats then brought this action in federal court in Louisiana seeking to recover the unpaid invoices based on failure to undertake reasonable efforts to collect the charter hire. GOL moved for judgment on the pleadings, citing the contract provision that it would not be responsible for non-payment of charter hire. Offshore Liftboats responded that GOL breached the separate obligation to use reasonable efforts to collect the charter hire. Judge Guidry declined to resolve the dispute over the contract terms at the preliminary stage of the litigation. He agreed the brokerage agreement provided that GOL would not be responsible for non-payment of charter hire. However, the allegations went beyond non-payment. Judge Guidry explained that Offshore Liftboats “attributes its damages to [GOL’s] failure to use reasonable measures to collect the charter hire, not Cox’s non-payment.” That was sufficient to state a claim for breach of contract, and discovery was necessary to determine whether GOL made all reasonable efforts to collect the hire. See Offshore Liftboats, LLC v. GOL, LLC, No. 2:24-cv-1632, 2025 U.S. Dist. LEXIS 178597 (E.D. La. Sept. 12, 2025) (Guidry).
In the case decided by Judge Vance, Seacor, which provides crewed vessels for marine transportation in support of oil and gas production, similarly contracted with GOL to broker Seacor’s vessels to charterers, and the contract provided that Seacor appointed GOL as its agent “solely for the purpose of obtaining charters” for Seacor vessels. The agreement contained the same provisions as in the previous case that charterers would pay the charter hire to GOL, which would remit the hire (minus the brokerage fee) to Seacor. The agreement stated that GOL would not be responsible for the charterers’ non-payment of charter hire, but that GOL would undertake all reasonable efforts to collect the hire (although Seacor retained the right to try to collect unpaid invoices directly from the charterer). Seacor provided vessels to Cox Operating that were brokered by GOL, but Cox Operating stopped paying for the charters and sought bankruptcy. GOL filed a claim in the bankruptcy proceeding that included approximately $2.7 million in unpaid invoices for Seacor’s charters (Seacor also filed a claim), and Seacor brought this suit in federal court in Louisiana against GOL, seeking to recover the amount owed on the outstanding invoices and an accounting with respect to payments GOL received from Cox Operating in the bankruptcy action ($13 million). Seacor and GOL filed motions for summary judgment, and Judge Vance began by finding that the brokerage agreement was unambiguous, concluding that whether GOL owed Seacor payments depended on whether GOL received payment on Seacor’s invoices. The Trade Agreement in the bankruptcy proceeding did not specify the invoices it was paying. However, the purpose of the agreement was to pay companies that continued to provide services to support Cox Operating in reorganization. As Seacor stopped providing services to Cox Operating months before the bankruptcy and did not commit to providing post-petition services, Judge Vance held that GOL did not have the discretion to pay Seacor from the $13 million disbursed in the Trade Agreement. Therefore, she held that GOL did not breach its duty to remit funds to Seacor. Judge Vance also rejected Seacor’s claim of breach of fiduciary duty, answering that GOL’s fiduciary duties were limited as it was Seacor’s agent only for obtaining charter hire and remitting payments actually received (GOL did not have a fiduciary duty over money to which Seacor was not entitled). Finally, Judge Vance addressed Seacor’s claim that GOL did not use reasonable efforts to collect the charter hire. GOL argued that it sought payment of unpaid invoices before the bankruptcy action and even filed liens on Seacor’s behalf. It continued collection efforts after the bankruptcy, including preserving the liens in the bankruptcy proceeding. However, Seacor argued that there were “significant other” steps that GOL could have taken, pre-petition, but it did not specify what those steps were. As Seacor did not identify additional actions or provide an industry standard that GOL failed to meet, Judge Vance found that Seacor failed to raise an issue of material fact that GOL did not use all reasonable efforts. Therefore, she dismissed Seacor’s claims with prejudice. See Seacor Marine, LLC v. GOL, LLC, No. 2:24-cv-2409, 2025 U.S. Dist. LEXIS 180892 (E.D. La. Sept. 16, 2025) (Vance).
Before Judge Fallon addressed the merits in the suit brought against GOL by R&R Boats in federal court in Louisiana arising out of GOL’s brokering vessels that were chartered to Cox Operating, GOL sought to disqualify the law firm representing the plaintiff (R&R Boats), asserting that an attorney at the firm previously represented Cox Operating in its bankruptcy action. Judge Fallon denied the motion on September 22, 2025 and then considered the motion for summary judgment filed by GOL. Judge Fallon agreed with GOL that the Brokerage Agreement is a maritime contract and that maritime law, not Louisiana law, applies. Therefore, R&R was not allowed to proceed on an open account claim under Louisiana law. In declining to grant summary judgment, Judge Fallon noted two distinctions between the contract with R&R Boats and the contract with Seacor. First, the agreement with R&R omitted the word “solely,” so the scope of the duty owed by GOL to R&R was potentially broader. Second, R&R presented evidence that created a fact dispute whether GOL undertook all reasonable efforts to obtain payment. Judge Fallon concluded: “Because the scope of GOL’s duty and the question of whether GOL’s actions undertaken to secure payment for R&R constitute ‘all reasonable efforts’ are issues pregnant with fact, the entry of summary judgment as to R&R’s breach of contract claim would be inappropriate. The claim must proceed to trial.” See February 2026 Update.
Judge Fallon held a bench trial in January 2026. He held that maritime law embraces general principles of agency and that GOL was R&R Boats’ collection agent with respect to Cox so that GOL owed fiduciary duties of loyalty, good faith, disclosure, and performance to R&R Boats. He found that the interests of GOL and R&R Boats became misaligned when GOL was given access to an insufficient amount to pay all of GOL’s operators. Judge Fallon held that GOL willfully breached its implied duties under the agreement to operate in good faith and loyally to R&R Boats. He awarded R&R Boats $1,430,000, “11% of the $13 million that GOL received from Cox, in recognition of the fact that the $2,815,561.40 balance owed to R&R under the Cox invoices constituted 11% of GOL’s total prepetition claim in the Cox bankruptcy action; and additionally that R&R may ultimately recover all or some portion of the balance owed to it by Cox via R&R’s claims in the still-pending Cox bankruptcy.” See April 2026 Update.
GOL moved for a new trial, and R&R sought attorney fees and costs. GOL argued that Judge Fallon erred in finding that GOL acted as R&R Boats’ collection agent, that he erred in finding that GOL breached the Trade Agreement, that GOL did not, as a matter of law, breach the brokerage agreement, and that Judge Fallon erred in awarding outstanding charter hire to R&R where “no party disputes that Cox never paid the charter hire.” Although Judge Fallon disagreed that GOL satisfied any of the grounds warranting a new trial, he responded to each of the arguments. He stated that there was no error in the finding that GOL acted as R&R’s collection agent because the evidence established that GOL undertook responsibilities extending beyond the mere arrangement of charters and expressly agreed to undertake all reasonable efforts to collect charter hire from the charterer. Judge Fallon answered that there was no error in the finding that GOL breached the Trade Agreement. Although breach of the Trade Agreement was not the basis for imposing liability on R&R, the finding was supported by the record. Judge Fallon responded that GOL breached the brokerage agreement as a matter of law as GOL failed to even attempt to allocate any portion of the Trade Agreement funds toward R&R’s approximately $2.8 million prepetition claim, which did not satisfy the reasonable efforts standard imposed by the agreement. Finally, Judge Fallon explained that he did not err in awarding outstanding charter hire to R&R notwithstanding the fact that Cox did not pay the charter hire directly because of the finding that liability arose from GOL’s breach of its contractual and agency obligations to exercise reasonable efforts to secure payment and protect R&R’s interests in the available settlement funds. Judge Fallon declined to grant a new trial, but he did not award attorney fees, in his discretion, to R&R for responding to the motion. Judge Fallon did award attorney fees and costs to R&R for its other work in the amount of $274,180.00 (in response to its request for $351,343.63). GOL objected to R&R’s bringing three attorneys and a paralegal to trial, arguing that the time was duplicative or in the passive role as an observer. Judge Fallon disagreed, accepting the explanation that one of the attorneys drafted nearly all of the witness outlines and was familiar with the exhibits and discovery. The paralegal assisted with documents and pleadings for impeachment. Thus, the roles were not passive observers. And, Judge Fallon added, GOL brought three attorneys to trial, reflecting that R&R’s staffing was consistent with the community standard. Judge Fallon did reduce the requested fees to account for an open account claim brought by R&R that was meritless from the outset and for fees paid by its counsel and not R&R in response to a recusal motion. Finally, Judge Fallon declined to reduce the amount sought for subpoenas ($14,706) on the ground that a number of the subpoenas were ultimately quashed by Magistrate Judge Roby. He recognized that subpoenas are commonly used during the course of trial proceedings and, absent evidence that the subpoenas were improper, issued in bad faith, or meritless, their costs are compensable.
Judge awarded detention/demurrage charges against consignee for the period that West Coast ports were congested and shipments were delayed; Transfair North America International Freight Services, LLC v. Top Shelf Manufacturing, LLC, No. 2:24-cv-1387, 2026 U.S. Dist. LEXIS 118242 (W.D. Wash. May 28, 2026 (Jones).
Transfair, which is a transportation intermediary that coordinates delivery of cargo by ocean, truck, and rail, was engaged by Top Shelf Manufacturing (d/b/a Edsal Sandusky) to deliver cargo from Asia to Edsal’s warehouses in Chicago (through the Port of Vancouver). Transfair billed Edsal $934,133.84 for detention/demurrage (the ports on the West Coast were congested and shipments were delayed). Edsal asked for backup documentation and declined to pay Transfair without the documentation. Transfair filed suit against Edsal in state court in King County, Washington, alleging claims for open book account, account stated, and quantum meruit. Edsal removed the case to federal court based on federal question jurisdiction under 49 U.S.C. Section 80101, et seq., and 49 U.S.C. Section 14705(a), and Edsal asserted a counterclaim that Transfair caused the delays and breached its duty of care as well as an affirmative defense of setoff (for lost sales and profits). Transfair responded to the counterclaim with a motion for summary judgment that the counterclaim was filed more than two years after the last cargo shipment, which was untimely under the 12-month limitation period in the bills of lading. Although there were several documents between the parties, the bills of lading stated that their terms superseded other applicable agreements. Accordingly, Judge Jones held that the counterclaim was time-barred. Although Transfair did not move for summary judgment on the setoff defense, Judge Jones reasoned that the defense required that Edsal prevail on its counterclaim in order to obtain a setoff. As Edsal could not establish that it was owed a debt from Transfair, Judge Jones ruled that Edsal was not entitled to a setoff. Edsal also moved for summary judgment, arguing that Edsal was not required by the parties’ contract to pay the detention/demurrage charges and that Transfair did not present sufficient evidence to support the charges. Reasoning that Edsal was covered by the provision in the bills of lading requiring the “Merchant” to pay for “freight and all other charges,” Judge Jones held that Edsal was responsible for detention/demurrage charges. Although Transfair did not produce the underlying invoices for the disputed amounts, Judge Jones found a fact question whether the amounts were owed based on its invoices and testimony of its officer as to the payment of the underlying invoices. See November 2025 Update.
Judge Jones held a bench trial with respect to Transfair’s claim for breach of contract. Judge Jones concluded that consignee Edsal accepted delivery of the cargo shipped under Transfair’s bill of lading, and, as a matter of law, became liable for the full amount of freight charges. Judge Jones also concluded that Edsal did not prove any breach of the duty of good faith and fair dealing. Accordingly, he awarded judgment to Transfair in the amount of $875,056.50 plus attorney fees and prejudgment interest. Transfair claimed that prejudgment interest should be awarded at the contract rate of 18%, but Judge Jones answered that the large difference between the contract rate and the Treasury bill rate would risk transforming a compensatory award into a punishment. Therefore, he awarded prejudgment interest at the rate set forth in 28 U.S.C. Section 1961(a). Top Shelf/Edsal filed a notice of appeal on July 9, 2026.
Suit for death of maritime worker was removable based on relation to a bankruptcy case because contractual indemnity provisions could impact one of the companies in the bankruptcy; Nichols v. JRON Services, LLC, No. 2:26-cv-3, 2026 U.S. Dist. LEXIS 118624 (E.D. La. May 29, 2026) (Brown).
Joshua Nichols was employed by a contractor of Whitney Oil & Gas. While investigating a gas lift line leak from his “mud boat” (Pro-Drive Boat) in Garden Island Bay, Louisiana, Nichols was killed in an explosion. Nichols’ beneficiaries initially brought suit against Whitney in state court in Orleans Parish, Louisiana based on Louisiana law and the Jones Act/general maritime law, and Whitney removed the action to federal court on the basis that the claims related to a pending bankruptcy proceeding. Although the beneficiaries argued that the claims did not have a sufficient connection to the bankruptcy estate because they arose from post-petition conduct, Whitney responded that the claims may give rise to administrative expense claims or trigger contractual indemnity obligations under an asset purchase agreement executed during the bankruptcy. Judge Brown found the relationship to be sufficient, and she then addressed whether the federal court must abstain because the claim had no independent basis for federal jurisdiction. As the tort occurred on a vessel on navigable waters, Judge Brown concluded that there was an independent basis for federal jurisdiction (admiralty) [compare this to the transformation argument that “when a maritime claim is filed in state court under the Savings [sic] to Suitors Clause, it is transformed into a case at law, as opposed to admiralty. The federal district courts thus do not have original jurisdiction under the Savings [sic] to Suitors Clause . . . .”]. The beneficiaries argued that a case brought in state court under the Saving-to-Suitors Clause may not be removed based on admiralty jurisdiction, but Judge Brown answered that the case was not removed based on admiralty jurisdiction (it was removed because it related to a bankruptcy proceeding). Noting that the owner/operator of the Pro-Drive Boat had filed a limitation action in the same federal court, Judge Brown found that permissive abstention was not appropriate. Accordingly, she denied the motion for remand (and the request for abstention). See November 2025 Update.
The beneficiaries of Joshua Nichols brought a second suit in state court in Plaquemines Parish, Louisiana against JRON Services, The Production Group, and Piranha Rentals under Louisiana law and, alternatively, under the general maritime law. The Production Group removed the case to federal court because it related to the bankruptcy, implicating the indemnity provisions in the Master Services Agreement between The Production Group and Spectrum. The beneficiaries moved to remand the case on the ground that the claims did not relate to the bankruptcy of Whitney because the defendants were not in privity with the bankruptcy debtor. The Production Group clarified that the indemnity obligations assumed by Spectrum would be passed on to Whitney pursuant to an asset purchase agreement, so the estate of bankrupt Whitney (through its affiliate Trimont) would be affected. Judge Brown agreed and held that the beneficiaries’ claims will have a conceivable effect on the bankruptcy case. Therefore, she denied the motion to remand.
Seaman was not entitled to a jury trial on his maintenance and cure claim after his Jones Act claim was dismissed before trial and there was no diversity; Adkins v. Marathon Petroleum Co., No. 1:17-cv-643, 2026 U.S. Dist. LEXIS 119064 (S.D. Ohio May 29, 2026) (Cole).
Brent Adkins worked for Marathon Petroleum as a tankerman, deckhand, and mate on the tug M/V ASHLAND from 2008 to 2012, helping in the loading and unloading of oil-based substances that emit hydrogen sulfide fumes. Adkins suffered from childhood asthma, and he was prescribed medication to help with his breathing (claiming that the medication was to treat seasonal allergies and bronchitis). His pre-employment physical reflected mild restrictive pulmonary function, and he reported working in environments that exposed him to dust and cleaning chemicals. Adkins suffered from obesity and had an episode of tachycardia in 2011, after which he was prescribed a beta blocker. Adkins and Marathon agreed that hydrogen sulfide can have harmful effects when inhaled, but they disagreed about the amount or concentration of inhalation that causes harm and whether Adkins’ current problems are attributable to exposure to hydrogen sulfide. Adkins did report that his badge for hydrogen sulfide was alerted on several occasions, and he was taken to the emergency room on one occasion where his complaint was feeling lightheaded. His pulmonary capacity deteriorated, and he was prescribed more intense bronchodilator treatment and eventually supplemental oxygen. His pulmonologist diagnosed him with toxic fume inhalation, and Adkins brought suit in Louisiana state court in 2015, seeking to recover damages for permanent damage to his respiratory system. The Louisiana court determined that the case would be better prosecuted closer to Adkins’ home in Portsmouth, Ohio, and Adkins filed this suit in federal court in Ohio, asserting claims for Jones Act negligence, unseaworthiness, and maintenance and cure. During the course of the litigation, Adkins hired Dr. Charles Pue to opine on medical causation, and Dr. Pue prepared a report that Adkins suffers from a chronic respiratory condition due to the inhalation of hydrogen sulfide fumes (the report did not address the concentrations required to cause injury, whether the exposure was cumulative, or the physiological mechanism by which Adkins’ asthma was aggravated by the exposure). In a supplemental report after the deadline passed for expert disclosures, Dr. Pue reaffirmed his original medical causation theory but still provided no discussion of the details and cited no supporting medical studies/articles. Adkins also offered as an expert his treating pulmonologist, Dr. Glenn Gomes, who prepared a letter with his medical causation opinion. That letter did not cite any scientific studies, peer-reviewed articles, or similar sources to support the opinion. Marathon moved for summary judgment in the federal suit, arguing that Adkins did not carry his burden of proving whether long-term, low-level exposure to hydrogen sulfide can cause symptoms like those exhibited by Adkins (general causation) and that the hydrogen sulfide exposure did cause his symptoms (specific causation). Marathon also filed motions to strike or limit the testimony of Adkins’ experts. Judge Cole noted that Adkins had to establish a causal relationship between the exposure and his current conditions in order to succeed on his claims for Jones Act negligence and unseaworthiness. However, Judge Cole stated that causation “is not per se an element” for the maintenance and cure claim. Instead, causation plays a limited role when the injury manifests after the seaman has left the service of the vessel—he must show that the later arising injury arose from his service (the treatment related to an injury that occurred or was aggravated during the service of the vessel). After holding a Daubert hearing, Judge Cole held that Dr. Pue did not provide a reliable basis to opine that the exposure causes pulmonary injury to people with pre-existing asthma (general causation). Dr. Pue declined to cite any literature to support his opinion, testifying that it was “general knowledge” and “goes back to medical school mechanisms of development of asthma.” Additionally, Dr. Pue did not disclose his general causation opinion in accordance with the federal rules. Judge Cole also declined to permit Dr. Pue to testify as to specific causation, as he did not rely on his own differential diagnosis but on the differential diagnosis that was performed by Dr. Gomes. As Dr. Gomes did not perform a reliable differential diagnosis because he did not adequately “rule in” hydrogen sulfide fumes, Dr. Pue’s opinion as to specific causation was not allowed. Adkins argued that Dr. Gomes could present opinions as to general and specific causation as a non-retained, treating physician. As a clinical pulmonologist, Dr. Gomes had medical training and experience recognizing and diagnosing respiratory injuries. However, Dr. Gomes was contacted by counsel for Adkins in anticipation of litigation, and he appeared to Judge Cole to have formed his causation opinion based on selective information provided by counsel and not in the course of treatment. Accordingly, Judge Cole concluded that Dr. Gomes was a traditional expert and that his testimony on general and specific causation could not be offered absent a report that complied with Rule 26(a)(2)(B), particularly when there were many potential causes for Adkins’ problems. Judge Cole then found that the failure to comply with the Rule was not substantially justified or harmless and excluded the opinion. In the absence of expert testimony on causation, Judge Cole granted summary judgment to Marathon. See June 2023 Update.
Adkins appealed to the Sixth Circuit, and, writing for the appellate court, Judge Mathis noted that Adkins had abandoned his primary argument to the district court that exposure to hydrogen sulfide and other hydrocarbon fumes caused his lung damage. Instead, he argued that his claims for negligence, unseaworthiness, and maintenance and cure did not relate to his hydrocarbon exposure and that he could prove them without expert medical testimony on causation (and without any causation evidence for his maintenance and cure claim). Before addressing the merits, Judge Adkins considered the exclusion of the testimony of Dr. Gomes and Dr. Pue. Judge Mathis reasoned that Judge Cole had ample reason to believe that Dr. Gomes formed his causation opinion at the request of Adkins’ counsel and in support of the litigation (it was not anticipation of litigation as the litigation had already begun). Thus, his failure to submit an expert report warranted exclusion of his testimony. Judge Mathis believed that Judge Cole did not abuse his discretion in excluding the opinions of Dr. Pue because his report was conclusory and did not meet the level of rigor and detail required by Rule 26. Adkins argued that Judge Cole should have allowed Dr. Pue to testify that other factors besides hydrocarbon exposure caused Adkins’ injuries, but there was a “simple reason why the district court focused only on that theory—it was the sole causation theory Dr. Pue offered.” As the only opinion in Dr. Pue’s report was that hydrocarbon fumes caused Adkins’ lung damage, Judge Cole correctly held that Dr. Pue could not testify that something else caused it. Judge Mathis then turned to the summary judgment on the Jones Act claims of negligent assignment and medical negligence. Adkins argued that he did not need medical expert testimony to establish that Marathon caused his lung damage as the jury was capable of making that finding without expert testimony. Judge Mathis noted that the Sixth Circuit had not specified when Jones Act claims require expert medical proof; however, other circuit courts have. Adkins claimed that Marathon’s negligence caused his lung function to slowly deteriorate during his work on the barge, akin to a cumulative trauma case. Although the focus changed from hydrocarbon exposure to other potential etiologies, Judge Mathis believed that his injury was not easily understood based on ordinary knowledge and experience. Therefore, he needed expert medical proof to show causation for his Jones Act negligence claims, and the claims failed as a matter of law in the absence of admissible testimony on causation. Adkins also argued that he was entitled to a presumption of causation based on THE PENNSYLVANIA Rule. Judge Mathis noted that the Sixth Circuit had not extended the Rule from collisions to other accidents. However, it did not matter whether the Rule extended to other accidents because Adkins did not assert that his lung damage arose from an accident, stating that the “slow deterioration of Adkins’s lung function over four years is not an ‘event’ and thus does not fit the definition of an accident.” The same lack of causation evidence doomed Adkins’ unseaworthiness claim. Although Judge Mathis affirmed the summary judgment on the negligence and unseaworthiness claims, he found that there were fact questions whether Adkins’ lung problems manifested while he was in the service of Marathon. Judge Mathis added that even if the lung problems originated before Adkins went to work for Marathon, his declining condition could indicate that his condition was aggravated during his service. Adkins did have a hospital stay, and he might be entitled to recover for that incident even if it was unrelated to his lung problems. Finally, even for lung issues that were diagnosed after his service with Marathon, there was an issue whether the injuries manifested before they were diagnosed. Accordingly, Judge Mathis reversed the summary judgment on the maintenance and cure claim (although he noted that Adkins was not out of the water yet because there were issues whether his condition was permanent and whether his cure was covered by insurance or some other source). See August 2024 Update. On August 2, 2024, both the panel and the full Sixth Circuit declined to rehear the decision that Adkins failed to establish causation in his Jones Act and unseaworthiness claims after the striking of his expert testimony. See Adkins v. Marathon Petroleum Co., No. 23-3418 (6th Cir. Aug. 2, 2024).
The question was then presented whether Adkins was entitled to a jury trial on his remaining claim for maintenance and cure. He argued that he had a Jones Act maintenance and cure claim, but Judge Cole rejected that argument, because he understood his “marching orders” from the Sixth Circuit to try “the general maritime law maintenance-and-cure claim, and only that claim.” Adkins asked that the remaining maritime claim be tried to a jury. However, Adkins did not bring the case in diversity, and the Jones Act claim was dismissed. Thus, the only remaining basis for jurisdiction was in admiralty. Adkins cited the Supreme Court’s Fitzgerald decision, but Judge Cole held that “Fitzgerald does not command the result he seeks.” Judge Cole walked through the decision “in some detail” and explained that mere assertion of a Jones Act claim that did not survive to trial did not support a jury trial. Finally, Adkins requested that Judge Cole empanel an advisory jury because the ultimate resolution depended on factual determinations. Judge Cole was not impressed, noting that he was “capable of making credibility assessments” and found “no justification for complicating the proceedings or unnecessarily burdening jurors and the judicial system by empaneling an advisory jury.”
Threshold that was marked “WATCH YOUR STEP” and with black and yellow safety tape was open and obvious, and prior incidents without documentation to show the similarity of the injury were insufficient to give notice to the casino boat operator in connection with passenger who tripped over the threshold; Getchell v. Tynda Holdings, LLC, No. 6:25-cv-711, 2026 U.S. Dist. LEXIS 120461 (M.D. Fla. May 29, 2026) (Byron).
Sherry Getchell has taken recreational casino cruises on vessels operated by Victory Cruises. A charter bus transported her to Port Canaveral Florida where she boarded the VICTORY I. She had lunch on Deck 1 and then played slot machines on other decks. After three hours, she was walking from the area of the stage in Big Norm’s Club V toward the bow of the vessel when she tripped over a threshold with a warning on each side to “WATCH YOUR STEP” and black and yellow safety tape. Getchell saw the threshold (she was looking forward and down at the threshold prior to the fall). Getchell brought this suit in federal court in Florida against the cruise line (alleging negligence for failure to maintain and failure to warn), and the cruise line moved for summary judgment, asserting that the threshold was not a dangerous condition, that it did not have notice of the danger, and that the condition was open and obvious. Getchell claims that the cruise line had notice of the danger because a crewmember admitted to her that the condition should have been fixed because “it’s a dangerous situation for both staff and clientele.” Judge Bryon did not believe that the uncorroborated conversation created a fact question sufficient to defeat a well-supported motion for summary judgment. He also rejected Getchell’s evidence of four prior incidents involving the threshold because Getchell did not provide any accident reports, passenger comment reviews, or other evidence from which the court could conclude that the prior incidents were substantially similar. Considering the markings depicted in photographs of the threshold, Judge Byron was unsure what the cruise line could have done differently to maintain the threshold to make it safer, and Getchell did not suggest ways to make it safer. Therefore, Judge Byron granted summary judgment on the claim for failure to maintain. As for the warning claim, Getchell argued that the extent of the danger was not open and obvious because there was an exposed metal piece that was imperceptible from standing height. Judge Byron did not see any protruding metal piece on the photographs, and he found the danger of the threshold was open and obvious. Accordingly, he granted summary judgment and dismissed the suit.
Judge struck vessel owner/employer’s third-party claim against crewmembers under Rule 14(c) in suit for seaman’s death (brought under the Jones Act and general maritime law) because the plaintiff did not designate Rule 9(h), but he allowed the vessel owner/employer to bring a third-party complaint for contribution against crewmembers under Rule 14(a), based on intentional acts of the crewmembers (who allegedly stabbed the seaman to death); Judge granted a limited stay of the civil case during the pendency of the criminal action and declined to bifurcate the claims against the employer from the third-party claims against the crewmembers; Dennis v. Westbank Fishing, LLC, No. 2:25-cv-1963, 2026 U.S. Dist. LEXIS 121170, 162102, 189601 (E.D. La. June 1, July 21, Aug. 21, 2026) (Ashe).
Thomas Johnson, a crewmember on the F/V FRANCES T. CARINHAS, was stabbed to death on the vessel, allegedly by crewmembers Josiah Cottrell, Timothy Cottrell, and David Cottrell. Aasha Dennis, putative personal representative of Johnson’s estate (and on behalf of his minor child), brought this suit in Louisiana federal court asserting claims under the Jones Act and general maritime law against Westbank Towing, as employer and owner of the boat, and for intentional torts against the Cottrell brothers. Dennis invoked jurisdiction under the Jones Act, general maritime law, and diversity. Westbank asserted a third-party demand against the Cottrell brothers pursuant to Rule 14(c), based on admiralty jurisdiction and Rule 9(h), claiming that the Cottrell brothers were solely liable to the Estate/child. Dennis moved to dismiss the third-party complaint, arguing that it could only be brought when the plaintiff files an admiralty claim pursuant to Rule 9(h), and Dennis asserted jurisdiction under the Jones Act, maritime law, and diversity but did not designate Rule 9(h). She amended her complaint to remove diversity because Westbank and the Cottrell brothers are from Louisiana. Westbank responded by citing a case in which the court held that a complaint alleging jurisdiction under the Jones Act and general maritime law constituted a designation of Rule 9(h). Dennis asked for leave to amend to clarify that she was not designating Rule 9(h), but Judge Ashe did not have to reach that issue, holding that the complaint did not designate Rule 9(h). He was persuaded by the pleading of federal question jurisdiction under the Jones Act together with a demand for a jury that was not available if the plaintiff intended to make a Rule 9(h) designation. Judge Ashe added that the removal of diversity was irrelevant because Dennis consistently relied on jurisdiction under the Jones Act. Consequently, Judge Ashe struck the Rule 14(c) tender (he also allowed Dennis to amend her complaint, and she removed the Cottrell brothers in the amended complaint). Judge Ashe did give Westbank 10 days to file any other third-party demand it may deem appropriate.
Westbank then filed a third-party complaint against the Cottrell brothers (within 10 days) pursuant to Rule 14(a) for contribution or indemnity. Dennis argued that Westbank did not ask for leave to file the complaint, which was required because it was not filed within 14 days of its original answer and was filed after the deadline for third-party actions. Judge Ashe answered that a motion for leave was not necessary because his order permitted the filing. Dennis then challenged whether Westbank was entitled to assert claims for contribution and indemnity against crewmembers, the Cottrell brothers. Judge Ashe first noted that a third-party complaint is to assert claims for nonparties. Although Dennis originally named the Cottrell brothers as defendants, Westbank noted that they were currently in the custody of the Plaquemines Parish Sheriff, having been indicted on charges of second-degree murder and obstruction of justice (they claimed self-defense), and Dennis’ amended complaint only alleged claims against Westbank. As Rule 14(a) is the proper vehicle by which Westbank could assert claims against the Cottrell brothers, Judge Ashe considered whether the maritime law provided a remedy for Westbank against the crewmembers. Judge Ashe explained: “Contribution in admiralty is the mirror image of admiralty comparative negligence.” Thus, there is no right of contribution or indemnity under admiralty law “unless the third-party defendant is directly liable to the plaintiff.” Accordingly, Westbank could assert a claim against the Cottrell brothers if Dennis could assert a viable claim against the Cottrell brothers. Judge Ashe reasoned that a seaman has no cause of action against his co-employee for negligence, and the employer does not have an action against the co-employee whose negligence gave rise to the seaman’s injury (he noted the distinction in the Fifth Circuit for damage to property). However, Judge Ashe distinguished the situation in which the co-employee is accused of an intentional act, as originally alleged by Dennis. He concluded: “Therefore, because Dennis could have brought a claim against the Cottrell brothers, and because Westbank can be held jointly and severally liable to Dennis for the tortious actions of the Cottrell brothers, Westbank has a claim for contribution against the Cottrell brothers for their comparative fault.” Dennis did note that Westbank’s pleading asserted that the Cottrell brothers are solely liable, which is inconsistent with a claim for contribution, but Judge Ashe answered that a complaint need not be “a model of the careful drafter’s art” and held that the complaint sufficiently stated a contribution claim.
After the Cottrell brothers were added to the suit, Westbank moved to stay the civil action pending resolution of the criminal proceedings, and Dennis moved to bifurcate the trial of her claims against Westbank from the third-party claims of Westbank against the Cottrell brothers. Judge Ashe reasoned: “The prospect that Westbank could be forced to defend against several million dollars in civil liability without evidence from the Cottrell brothers is a heavy and unjustifiable burden.” However, he acknowledged that Dennis would be prejudiced by a blanket stay. Accordingly, he issued a stay with limited duration and scope. Judge Ashe allowed the parties to pursue discovery that is not directed to the Cottrell brothers or that would implicate the Cottrell brothers’ Fifth Amendment privileges. He also directed the parties to provide periodic reports on the status of the criminal proceedings. Judge Ashe then addressed Dennis’ motion to bifurcate the case into two trials, the liability of Westbank and the liability of the Cottrell brothers. In view of the overlap of the claims and the evidence that Westbank would use from the Cottrell brothers, Judge Ashe did not believe that bifurcation was warranted. He concluded: “Because the same factual scenario—the stabbing death of Johnson—is central to both Dennis’s Jones Act and unseaworthiness claims and Westbank’s third-party contribution and indemnity claims, bifurcation of the issues would be both inconvenient and inefficient.”
Judge declined to dismiss limitation petitioner’s counterclaim against claimant, seeking indemnity and contribution, (on the ground that indemnity/contribution was merely an affirmative defense) because the counterclaim sought attorney fees and expenses that are beyond the scope of an affirmative defense; In re Dorchester Street Jet Skis, Inc., No. 1:25-cv-1327, 2026 U.S. Dist. LEXIS 123273 (D. Md. June 3, 2027) (Rubin).
On August 12, 2024, a 2024 Seadoo Personal Watercraft operated by John Cristopher Vallorosi and rented from Dorchester Street Jet Skis, came into contact with a 2024 25RA00 Personal Watercraft operated by Robin Blumgart and rented from Under the Bridge Watersports. On October 18, 2024, Blumgart brought suit in state court in Worchester County, Maryland against Dorchester Street Jet Skis (and others) along with Vallorosi. Dorchester Street Jet Skis and others brought this limitation action in Maryland federal court on April 25, 2025, and Blumgart filed a claim in the limitation action. Dorchester Street Jet Skis filed a third-party complaint against Under the Bridge Watersports, seeking indemnity and contribution, and a counterclaim against Blumgart seeking indemnity and contribution. Blumgart moved to dismiss the counterclaim, arguing that it was actually an affirmative defense for which no relief may be granted—it simply defeated Blumgart’s claim against Dorchester Street Jet Skis. Judge Rubin agreed that most of the claim for indemnity and contribution with respect to any recovery in favor of Blumgart was simply an affirmative defense. However, the claim also requested attorney fees and costs. Thus, the counterclaim sought relief beyond that of an affirmative defense, and Judge Rubin declined to dismiss it.
General allegations of prior incidents lacked sufficient specificity to provide notice to the cruise line with respect to a passenger’s slip and fall in a translucent substance; allegations that the fall was in a high traffic area and that the cruise line’s policies require inspecting and maintaining the area were insufficient to plead notice; Orchanian v. MSC Cruises S.A., No. 0:25-cv-61623, 2026 U.S. Dist. LEXIS 123670 (S.D. Fla. June 4, 2026) (Damian).
Carole Orchanian, a passenger on the MSC SEASCAPE, slipped and fell on a wet substance on the tile deck surface as she exited the elevators on Deck 18 of the vessel. She claims that the substance was translucent and not easily detectable. Orchanian brought this suit against the cruise line in Florida federal court, asserting counts for negligent maintenance and negligent failure to warn. The cruise line moved to dismiss the complaint for insufficient pleading of notice, and Judge Damian first noted that the allegation about the nature of the substance (translucent) did not establish that it had been present long enough to require action. Judge Damian then considered the assertion that there were six substantially similar slip-and-fall incidents on the same vessel or vessels of the same class. The cruise line responded that all of the references were to generic falls on a wet, slippery, foreign, and/or transitory substance, and Orchanian answered that two were on the SEASCAPE and one was near elevators (but on a different deck). Judge Damian did not consider the general descriptions to be sufficient: “Ms. Orchanian does not set forth specific factual allegations that indicate or suggest that the incidents are substantially similar, such as the type of substance she fell on, the length of time the substance was present, or the type of floor surface on which the substance was present.” Judge Damian schooled Orchanian: “the allegations must go beyond mere conclusory recitals and need to at the very least identify the deck/location (e.g., pool deck), type of hazard (e.g. water), name of the vessel or vessel class if the vessel is different, and any other details that show that the incidents are substantially similar.” The general allegations were insufficient. Orchanian also asserted that the cruise line had notice because the dangerous condition was in a high traffic area so that the cruise line should have known of the likelihood of wet, slippery, and transitory substances, but Judge Damian answered that the Eleventh Circuit and district judges have considered such allegations to be insufficient to establish notice. Finally, Judge Damian rejected the argument that the cruise line’s policies requiring inspecting and maintaining the area provided notice, citing the cases that have held such pleading to be insufficient. Judge Damian dismissed the complaint without prejudice with leave to amend.
United States did not owe a duty in connection with the death of a 12-year-old whose paddle board was struck by a personal watercraft in Mission Bay, California; Peterson v. United States, No. 3:25-cv-1916, 2026 U.S. Dist. LEXIS 125087 (S.D. Cal. June 5, 2026) (Huff).
On July 29, 2023, three individuals rented two personal watercraft for use in Mission Bay in San Diego, California. One of the watercraft struck and killed a 12-year old child who was on a stand-up paddle board near De Anza Cove in Mission Bay. The operator of the watercraft was arrested and pleaded guilty to vehicular manslaughter with gross negligence. On July 28, 2025, beneficiaries of the decedent brought suit in federal court in California against the United States under the Suits in Admiralty Act, asserting that the Army Corps of Engineers and Coast Guard maintain, operate, control, monitor, oversee, regulate, and administer the waters and marinas of Mission Bay, San Diego in conjunction with the City of San Diego and the State of California. The beneficiaries claim that the United States was aware of the dangerous navigation conditions in Mission Bay and failed to take corrective action or warn mariners. They also claim that the Coast Guard has mandatory duties to ensure the safety of navigation waterways through the maintenance and placement of federal aids to navigation. The United States moved to dismiss the complaint on the ground that it did not owe a duty of care to the decedent. The beneficiaries asserted four theories for a duty of care, claiming that “admiralty recognizes a federal duty of care to waterway users that does not depend on title.” They cited a case in which the United States was held liable for negligent placement of an unlit mooring buoy within at a Naval Weapons Station. Judge Huff distinguished the present case because the personal watercraft that collided with the decedent was not placed on property of the United States, and the United States was not responsible for the area. Additionally, the beneficiaries did not cite any authority providing a private cause of action against the United States for negligently authorizing applications for private aids to navigation. Judge Huff also rejected a negligent-undertaking theory under Indian Towing, as the beneficiaries failed to establish that the United States renders services related to aids to navigation or Waterways Analysis and Management Surveys. Judge Huff also declined to find a duty of care resulted from the designation of Mission Bay as a Regulated Navigation Area, the Coast Guard’s permitting authority, and the Coast Guard’s role on the San Diego Harbor Safety Committee. Finally, Judge Huff held that the participation of the Corps of Engineers in the dredging of Mission Bay did not support a duty with respect to the mixed-use throughway where the incident occurred. Judge Huff dismissed the case for absence of a duty, but granted leave to amend to “as to any issue that Plaintiffs contend can be cured by amendment consistent with this order.” The beneficiaries did not amend.
How to make a charitable donation of your boat when there is an old ship mortgage on file with the National Vessel Documentation Center that has been paid; San Francisco Bar Pilots Benevolent & Protective Association v. PILOT VESSEL GOLDEN GATE, No. 3:25-cv-4413, 2026 U.S. Dist. LEXIS 125461 (N.D. Cal. June 5, 2026) (Tse); (N.D. Cal. July 9, 2026) (Tse), recommendation adopted, (N.D. Cal. Aug. 6, 2026) (Breyer).
Opinion Denying Default Judgment
Recommendation for Default Judgment
Opinion Granting Default Judgment
The San Francisco Bar Pilots Benevolent and Protective Association is a California mutual benefit non-profit corporation for the San Francisco Bar Pilots. The Association owns the pilot boats used to provide pilotage services in the bays of San Francisco, San Pablo, Suisun, and Monterey. The P/V GOLDEN GATE was built for the Association and launched in 1993 and was in service until 2023 when it was replaced by a new vessel of the same name. The Association arranged to donate the GOLDEN GATE to Sea Fox Nautical Foundation, a chapter of the Sea Scouts, which is a non-profit organization promoting seafaring skills for youth. The vessel was moored in Alameda, California. The Association financed the construction of the GOLDEN GATE with a first preferred ship mortgage with AT&T Commercial Finance Corp. The mortgage was properly registered, and the 120 monthly installments were fully paid in 2003. Before the payments were completed, AT&T Commercial Finance ceased to exist, and the succession of mortgagees was enigmatic to the Association; however, no successor advised the Coast Guard National Vessel Documentation Center that the mortgage had been discharged. Thus, the mortgage remained on record, impeding an unencumbered charitable donation to the Sea Scouts to use the vessel in its training mission. The Association brought this action in federal court in California (in the district where the GOLDEN GATE is located), as a petitory action against the GOLDEN GATE, in rem, under Supplemental Rule D, to try title to the vessel, seeking a ruling that all interest of AT&T Commercial Finance and its successors was terminated and barred. The Association requested process be issued against all persons claiming any interest in the vessel, citing them to interpose their claims, that judgment be granted exonerating the vessel of all claims of any lien that might be claimed on account of the preferred ship mortgage, and establishing the sole ownership of the Association so that title could be transferred by the Association to the Sea Fox Nautical Foundation. The Association also named AT&T Finance and others, in personam, but there was no pleading against them directly. The Association was able to serve one defendant, First Citizens Bank & Trust, but the Association did not ask that the GOLDEN GATE be arrested. First Citizens Bank did not appear, but it provided a Declaration that it was the successor and did not have any mortgage on the vessel (confirming that the mortgage was satisfied prior to its acquisition of the assets of AT&T Commercial Finance). The Association then sought a default judgment that the recorded mortgage was void and no longer in effect. The Association consented to having Magistrate Judge Tse hear proceedings, but Magistrate Judge Tse declined to grant a default judgment. He first questioned whether the GOLDEN GATE was an appropriate defendant as the Association did not seek any relief from the vessel and did not arrest the vessel. Instead, the Association only sought a declaration that the mortgage (held by an in personam defendant or its predecessor) was no longer in force. He declined to enter a judgment against a defaulting in personam defendant until the in rem matter was adjudicated: “If plaintiff has claims against the Vessel, Plaintiff must proceed with them. If there are no such claims, Plaintiff should either voluntarily dismiss all claims against the in rem defendant or explain why dismissal isn’t warranted . . . .” Judge Tse then counseled the Association that the court would have jurisdiction, without the in rem defendant, explaining that the in personam mortgagee/defendant would have jurisdiction to enforce the mortgage against the Association, which gives the Association the right to seek declaratory relief against the defendant that it does not owe the mortgage.
The Association voluntarily dismissed the GOLDEN GATE, and Magistrate Judge Tse then issued his recommendation with respect to the motion for default against the in personam defendant that was served but did not answer (First Citizens Bank). He first noted that he could not order the entry of judgment because the defaulting defendant had not appeared and consented to magistrate jurisdiction. Therefore, he directed the district clerk to reassign the case and issued a recommendation that the district judge grant the motion. Magistrate Judge Tse reiterated his analysis that the court had jurisdiction to enter a declaratory judgment against First Citizens Bank and then concluded that there were no disputed facts in light of the defaulting defendant’s Declaration. Therefore, he recommended that, on reassignment, Judge Breyer enter a default judgment declaring that the preferred ship mortgage has been satisfied and is no longer in effect. Judge Breyer agreed and entered a default judgment that the mortgage was satisfied and is no longer in effect.
Magistrate Judge granted summary judgment that employer owed maintenance and cure to seaman, awarding maintenance (based on expenses) of $30.40 per day, ordering payment of the post-adjustment medical charges for past treatment, and ordering payment for an ACL surgery; Cotner v. Osterback, No. 3:25-cv-366, 2026 U.S. Dist. LEXIS 142833 (D. Alaska June 5, 2026) (Scoble).
John Wayne Cotner, who was looking for work in Sand Point, Alaska, met David Osterback, owner of the fishing boat PACIFIC MAID. Osterback was hesitant to hire Cotner after interviewing him, so he did not give him a long-term contract, waiting to see how he performed. He told Cotner he would hire him if he wanted the job, and Cotner agreed (Osterback claims he was disappointed with Cotner’s incompetent work). A few days after Cotner started work, Cotner asserts that he set the seine net and slipped and struck a tie-up ring, injuring his knees, wrists, and face (attributing the injury to the condition of the bow step). The vessel docked in Sand Point, and Cotner went to a clinic and filled out a report of injury with the Alaska Department of Labor and Workforce Development. He later went to the emergency room at a regional medical center, where he was diagnosed with a torn ACL in his right knee and a recommendation for surgery. Osterback declined to pay for the surgery or medical care, and Cotner filed this complaint in federal court in Alaska against Osterback, seeking recovery under the Jones Act and under the general maritime law for unseaworthiness, maintenance and cure, and failure to pay maintenance and cure. Cotner filed a motion for partial summary judgment, seeking an order that Osterback must pay maintenance and cure, and Magistrate Judge Scoble agreed that Osterback had not rebutted Cotner’s showing that he was entitled to maintenance and cure. Cotner met his initial burden with evidence that he was laboring on the vessel as a deckhand and a skiffman and that he sustained and injury. Osterback argued that there were five areas of fact dispute that precluded a summary order to pay maintenance and cure. First, he argued that Cotner was a “tryout” and had not been given a contract. Magistrate Judge Scoble rejected that argument, answering that whether his employment was only temporary was not the issue. He explained that the right to maintenance and cure is not created by a written contract but by the worker’s relationship to the vessel. Second, Osterback argued that there was a fact issue whether Cotner was injured because Osterback did not observe the injuries. Magistrate Judge Scoble did not believe that response created a fact question. Third, Osterback argued that Cotner quit or refused to continue the trial period, but Magistrate Judge Scoble answered that resigning after the injury did not absolve Osterback from his obligation to pay maintenance and cure, which is not limited to the duration of employment. Fourth, Osterback argued that the condition was preexisting or occurred subsequent to the voyage, but he presented no supporting evidence of that position. Fifth, Osterback denied that conditions of the vessel caused the injury, but Magistrate Judge Scoble noted that maintenance and cure is not based on any unseaworthy condition or negligence. Cotner provided his living expenses, and Magistrate Judge Scoble awarded maintenance at the daily rate of $30.40. As for cure, Magistrate Scoble reviewed the medical expenses submitted as pre-adjusted charges. Magistrate Scoble ordered reimbursement of post-adjustment charges and ordered Osterback to pay for an ACL surgery.
Neither owner of platform nor its contractor owed a duty to the employee of another contractor who was injured by the decision of the injured worker’s supervisor to unscrew a cross-threaded plug while it was suspended; Jones v. Sparrows Offshore, LLC, No. 4:24-cv-4679, 2026 U.S. Dist. LEXIS 125869 (S.D. Tex. June 8, 2026) (Lake).
MC Offshore Petroleum owned and operated a platform affixed to the outer Continental Shelf of the Gulf of America, offshore Louisiana, in Green Canyon Block 184. MC Offshore engaged contractors Crescent Energy and Sparrows Offshore to perform work on the platform. Billy Joe Jones was employed by Crescent. On August 9, 2024, employees of Crescent and Sparrows were engaged in plugging and abandoning wells that tied into the platform. The workers had removed the tubing from a well and were getting ready to insert the bridge plug. However, the Crescent crew screwed the retainer to the plug in a cross-threaded fashion. While the workers were unscrewing the plug, the plug fell off, resulting in an injury to Jones’ hand. Jones brought this suit in Texas state court against Sparrows and MC Offshore, and the defendants removed the case to federal court (under the Outer Continental Shelf Lands Act) and filed motions for summary judgment. Judge Lake applied Louisiana law as surrogate federal law under the choice-of-law provision in the OCSLA and granted summary judgment to the defendants. He found no evidence that MC Offshore retained operational control over the plugging operation or that the operation was ultrahazardous. Therefore, MC Offshore was not vicariously liable for Jones’ injury. Judge Lake then held that MC Offshore was not liable for any negligence on its part because the condition of the cross-threaded plug was open and obvious. As for Sparrows, Jones argued that it was liable because its crane operator handled the suspended plug in an unsafe manner. Sparrows argued that it did not owe a duty to Jones because an independent contractor does not owe a duty to protect the employee of another independent contractor and because Crescent instructed Jones to unscrew the plug while it was suspended in the air. Judge Lake agreed that Sparrows’ duty did not encompass the risk that Jones would injure himself in the operation undertaken by Jones and Crescent without direction from Sparrows. Judge Lake explained that it was a Crescent employee who made the decision to unscrew the cross-threaded plug while it was suspended, and it was Jones who followed that instruction despite the understanding that the cross-threaded plug could have fallen at any moment solely because it was cross-threaded.
Beneficiaries of Navy sailor who died from mesothelioma allegedly caused by exposure to asbestos could not recover for his pain and suffering before death and could not introduce evidence of his pain and suffering in suit against manufacturers; Losurdo v. ViacomCBS Inc., No. 2:21-cv-1965, 2026 U.S. Dist. LEXIS 134252 (D.N.J. June 16, 2026) (Neals).
William A. Losurdo served in the Naval Reserve and on active duty in the Navy from 1967 to 1970. During his active duty he was assigned to the U.S.S. MISSISSINEWA, an oil tanker that refueled war ships at sea. After serving as a deckhand for three months, Losurdo spent his remaining 18 months on the MISSISSINEWA as a petty officer, third class storekeeper (processing requisitions and making sure that the orders were processed). For some period in 1970, the vessel was in drydock at Boston Naval Shipyard, which required that Losurdo enter the engine room of the vessel three to four times a week, spending between 30 to 60 minutes in the proximity of equipment on which work was being performed (dust was flying). His office was located four feet from the entrance to the engine room. Losurdo was diagnosed with mesothelioma in August 2020, and he died as a result of mesothelioma on January 15, 2022. Losurdo brought this suit in state court in Middlesex County, New Jersey against suppliers of equipment allegedly containing asbestos, and the case was removed to New Jersey federal court (based on the Federal Officer Removal Statute) where the action was continued by Losurdo’s beneficiaries after his death. Two of the defendants, GE and Westinghouse, moved for summary judgment. GE supplied two main propulsion turbines, and Westinghouse supplied three ship service turbine generators. Applying maritime law, Judge Neals began by addressing the arguments of GE and Westinghouse that they were entitled to summary judgment on the claim for duty to warn (based on the standard articulated by the Supreme Court in DeVries). Finding fact questions on the elements that the product required incorporation of a part that makes the integrated product dangerous for its intended uses, that the manufacturer knew or had reason to know that the integrated product was likely to be dangerous to its intended uses, and that the manufacturer had no reason to believe that the users would realize the danger, Judge Neals declined to grant summary judgment to GE and Westinghouse on the claim for failure to warn. Turning to the design defect claims, Judge Neals found sufficient evidence from the fact and expert witnesses that the products were a substantial factor in causing Losurdo’s mesothelioma and denied the motions for summary judgment. Judge Neals denied the assertion by GE and Westinghouse of a Boyle government contractor defense based on the failure to satisfy the defendants’ burden of proof (noting, for example, “As GE fails to expressly point to the record evidence that supports this propositions [sic], and it is not the Court’s responsibility to comb through the voluminous record to locate the record evidence supporting these propositions, the Court finds GE has failed to satisfy its burden of proving each of the prongs of the Boyle test for the design defect claims.”). Finally, Judge Neals addressed the defendants’ argument that the plaintiffs were not entitled to recover for loss of consortium and punitive damages. Citing the decision of the Supreme Court in Miles that beneficiaries of seamen are not entitled to recover loss of society, Judge Neals held that loss of consortium was not permitted in the claim brought by the beneficiaries of Losurdo. The plaintiffs cited the decisions of the Supreme Court in Alvez and Townsend, to support an award of punitive damages (and loss of consortium), but Judge Neals answered that Alvez was decided before the Supreme Court’s decision in Batterton, rejecting recovery for punitive damages for beneficiaries of seamen in unseaworthiness cases. Judge Neals added that the Court in Townsend explicitly distinguished between the maintenance and cure claim at issue in that case and wrongful-death actions where "Congress has spoken directly." Therefore, Judge Neals granted summary judgment on the claims for loss of consortium and punitive damages. See June 2025 Update.
GE and Westinghouse moved to bar evidence of Losurdo’s pre-death pain and suffering, arguing that the damages were not recoverable against a product manufacturer for exposure to asbestos aboard a naval vessel. The plaintiffs countered that New Jersey state law allows recovery for pain and suffering because general maritime law does not preclude recovery of survival damages. Judge Neal applied the Batterton three-part test for the Miles uniformity principle: whether such damages have traditionally been awarded for the claim, whether conformity with parallel statutory schemes would require such damages, and whether the court is compelled on policy grounds to allow the damages. Judge Neal held that traditional maritime law did not permit a deceased seaman’s relatives to maintain a survival action and recover pre-death pain and suffering damages, neither the Jones Act nor DOHSA permits recovery of the decedents’ pain and suffering against non-employer third-parties, and Congress has not taken a legislative approach to maritime survival damages sufficient to compel the court to award pre-death pain and suffering. Judge Neals also addressed whether the court should supplement federal maritime law with New Jersey law and held that Losurdo fell within the group enumerated in Calhoun for which state remedies are not available (seamen, longshore workers, and persons otherwise engaged in a maritime trade). As the plaintiffs were not entitled to recover damages for pre-death pain and suffering, Judge Neals held that evidence of Losurdo’s pain and suffering would be inadmissible.
College student who rented a pleasure craft for a group of students was not entitled to summary judgment on the marina/vessel owner’s indemnity claim (based on the terms of the rental agreement) as the indemnity did not violate public policy because of the marina’s failure to carry required liability insurance; renting student who did not operate the vessel was not entitled to summary judgment on the negligence claim brought on behalf of the student who drowned because the renting student was the owner pro hac vice by virtue of the rental agreement and owed the duty of reasonable care to passengers; In re Anchorage Yacht Basin, No. 6:24-cv-1305, 2026 U.S. Dist. LEXIS 137092 (M.D. Fla. June 22, 2026) (Sneed).
In May 2023, a group of college students met in Melbourne, Florida to celebrate the end of the school year. They stayed at a house belonging to the family of a fraternity brother. The students decided to go boating for the day, and Brandon Assam and his sister, Karis Assam, agreed to use their credit cards for the boat rental. Brandon decided to rent the boat from Anchorage Yacht Basin because he had previously rented from Anchorage Yacht Basin. The group initially rented one boat, but after an argument, Michael Millimaci agreed to use his credit card to rent a second boat. Stone Sparkes, who has boating experience and a Georgia boater’s license, agreed to be the operator of the second boat. The group agreed to share the cost of the rental. Anchorage Yacht Basin rented a 20-foot Hurricane Fundeck motor vessel to Millimaci. Daniel Eduardo Perez was a passenger on the vessel while it was operating in the Intracoastal Waterway near Palm Bay in Brevard County, Florida. Perez went for a swim (without a life vest or flotation device) and drowned while the vessel drifted away after the operators were unable to start the engine or maneuver the vessel to allow him to board. Anchorage Yacht Basin brought this limitation action in federal court in Florida (limitation fund of $11,500), and Marcos Eduardo Perez, Sr., personal representative of the Estate of Daniel Perez, brought a claim in the limitation action (under maritime law and Florida law). Millimaci and Sparkes also brought claims in the limitation action (Sparkes sued for indemnity, contribution, breach of contract, and negligence). Marcos moved to lift the stay so that he could file a wrongful death complaint in state court within Florida’s two-year limitation period, but he did not file any stipulations on behalf of the Estate or Millimaci or Sparkes. As the claims exceeded the value of the vessel, Judge Sneed considered the case to present a multiple-claims-inadequate-fund situation. Although Marcos was concerned that the limitation period to file suit in state court would expire before the limitation proceeding concluded, and he stated that he would move the state court for a stay once the action was filed, Judge Sneed answered that the limitation court had the power to adjudicate all of the claims, including the wrongful death claim. Therefore, there was no problem with a time bar, and Judge Sneed declined to lift the stay to allow a suit in state court. See February 2025 Update.
Sparkes also filed a limitation action in Florida federal court, and the actions were consolidated. Millimaci then filed a motion for summary judgment on four issues. Millimaci challenged the validity of the indemnity and hold-harmless clauses in his rental agreement with Anchorage Yacht Basin, arguing that the agreements violated Florida law because Anchorage Yacht Basin did not carry the required liability insurance for a livery under Florida law and because an exemption from liability arising from failure to comply with a safety statute is unenforceable as a violation of public policy. Judge Sneed reasoned that maritime law applied to the agreement, but she noted that courts may apply state law if it does not frustrate the national interest in having uniformity in admiralty law. Nonetheless, Judge Sneed declined to grant summary judgment as “technical noncompliance with the liability insurance requirement” is not a violation of a safety statute. Millimaci next sought summary judgment on the claims of Anchorage Yacht Basin that Millimaci breached the contract with Anchorage by permitting the boat to be used in a careless or negligent manner. Millimaci argued that he did not operate the boat, but Judge Sneed answered that there was evidence that Millimaci permitted Sparkes to operate the boat in a negligent manner, which would constitute a breach of the agreement. Millimaci also argued that the contract claim should be rejected because it was really a tort claim (citing the independent tort doctrine that a party may not recover in tort for a contract dispute unless the tort is independent of the breach of contract). Judge Sneed explained that “Millimaci has the independent tort doctrine backwards. He does not contend that Anchorage cannot bring tort claims against him because of his contract; rather, he maintains that Anchorage cannot assert a contract claim against him because the claim is really a tort claim.” As a factfinder could conclude that Millimaci breached the agreement not to permit the boat to be used in a careless or negligent manner, Judge Sneed denied summary judgment on Anchorage Yacht Basin’s claim for breach of contract. Millimaci also moved for summary judgment that the negligence claims of Perez, Sr. failed because Millimaci did not owe Perez a duty of reasonable care. Millimaci agreed that the owner and operator of the boat owe a duty of reasonable care to passengers, but he argued that he was not the operator of the boat. Although he asserted that it was the group that took possession of the boat and he lacked the ability to exercise control of the vessel, Judge Sneed responded that Millimaci was the owner pro hac vice of the boat because of the rental agreement and owed the duty of reasonable care. Millimaci also argued that there was no evidence of his negligent entrustment of the vessel to Sparkes, but Judge Sneed stated that, as the only owner pro hac vice on the boat, “no other individual was better positioned to prevent Mr. Sparkes from negligently operating the boat.” Finally, Millimaci argued that neither Anchorage Yacht Basin nor Sparkes was entitled to contribution or indemnity from Millimaci because he was not negligent. As she previously agreed that there was a fact question of Millimaci’s negligence, Judge Sneed declined to grant summary judgment on the contribution and indemnity claims.
State of Maine had title to the wreck of the DELHI, located in state waters, under the Abandoned Shipwreck Act as the vessel had been determined to be eligible for inclusion in the National Register of Historic Places; JJM, LLC v. S/V DELHI, No. 1:24-cv-72, 2026 U.S. Dist. LEXIS 138516 (D. Maine June 23, 2026) (Nivison).
This case involves the shipwrecked vessel DELHI. It was constructed in 1872-73 by Captain Richard F.C. Hartley of Saco, Maine as a wooden-hull, two-masted, single-deck schooner to carry coal. It was retrofitted around 1879 to carry granite when Maine became a center of the granite industry in New England. Shortly after being loaded with 10,000 granite paving stones, the vessel struck ice and sank in Maine waters under approximately 120 feet of water. Members of JJM began looking for the DELHI in 2022, located the wreck, and retrieved one of the granite pavers and a wooden plank. The State of Maine determined that the wreck of the DELHI would be eligible for listing on the National Register of Historic Places, and it was determined to be eligible. JJM brought this action against the wreck, in rem, in federal court in Maine, asserting ownership under the law of finds or, alternatively, a salvage award. The State intervened and sought summary judgment that it holds title under the Abandoned Shipwreck Act. Under that statute, the United States is granted title to an abandoned shipwreck that is embedded in submerged lands of a State or on submerged lands of a State and is included in or determined eligible for inclusion in the National Register. The statute transfers title from the United States to the state in or on whose submerged lands the shipwreck is located. Finding that the DELHI was abandoned (no insurer had made a claim) and that the DELHI had been determined to be eligible for inclusion in the National Register (there was a fact question whether it satisfied the criterion of being embedded, although some portion of the DELHI was below the seafloor), Magistrate Judge Nivison held that the State of Maine held title to the DELHI under the Abandoned Shipwreck Act and granted summary judgment to the State.
From the state courts
Maritime law applied to products liability suit against manufacturer of jet ski that exploded and injured the operator on Lake Havasu on the Colorado River; evidence was insufficient to establish that the condition in the manufacturer’s warning was the cause of the explosion; Strumpfer v. Kawasaki Motors Corp., No. 30-2023-01357407, 2026 Cal. Super. LEXIS 23195, 37346 (Cal. Super. Orange Cnty. Mar. 10, June 2, 2026) (Gabriel).
David Strumpfer was injured when the jet ski he was operating exploded at the Havasu Riviera Marina on the Colorado River in Arizona (the jet ski was a 2003 or 2004 model that Strumpfer received from a friend in 2022). Strumpfer brought this products liability action against the manufacturer of the jet ski, Kawasaki Motors, in state court in Orange County, California, and Kawasaki filed a motion to determine the applicable law (arguing that maritime law applied). Strumpfer did not contest the locality, but, citing the Ninth Circuit’s H2O Houseboat Vacations decision, he argued that a hazard on a recreational vessel on Lake Havasu lacked the potential to disrupt maritime commerce. The incident in H2O Houseboat Vacations involved the emission of carbon monoxide fumes inside a confined space within a houseboat tied to the shore and did not have the potential to disrupt maritime commerce. The explosion near the marina was more like the fire on the vessel in Sisson–it could have harmed or disrupted commercial vessels and required a marine rescue. Therefore, Judge Gabriel agreed to apply maritime law. Kawasaki Motors moved for summary judgment that it had put warnings in the manual and on the jet ski of the risk of explosion due to lack of ventilation, warning to ventilate the engine compartment after each ride and that a concentration of gasoline fumes in the engine compartment can cause a fire or explosion. Kawasaki asserted that Strumpfer failed to adequately ventilate the engine compartment just prior to the explosion (although he did ventilate the engine when he refueled the engine before entering the water). Judge Gabriel agreed with Kawaski Motors to apply the Third Restatement for tort claims under maritime law (no longer applying the consumer expectation test), but Judge Gabriel found a fact question whether the explosion was caused by active fuel system leakage rather than stale fume accumulation and whether ventilation would have prevented an explosion. Kawasaki Motors presented the conclusions of the San Bernadino County Sheriff investigator that the jet ski was not properly vented prior to restart and an explosion occurred. Although Kawasaki Motors argued that the report was admissible under the public employee records exception to the hearsay rule, Judge Gabriel disagreed and declined to grant summary judgment.
Saving-to-Suitors Clause did not alter the enforceability of a passenger ticket’s forum selection for the United States District Court for the Southern District of Florida; Somers-Hill v. Princess Cruises, No. 25CHCV04234, 2026 Cal. Super. LEXIS 41032 (Cal. Super. Los Angeles Cnty. June 2, 2026) (Gelfound).
Sharon Somers-Hill slipped and fell on a staircase on the GRAND PRINCESS and brought this suit in state court in Los Angeles County, California against the cruise line. The cruise line moved to dismiss the suit on the ground of forum non conveniens, citing the mandatory forum-selection clause in the Passage Contract for the United States District Court for the Southern District of Florida. Judge Gelfound found no competent evidence that Somers-Hill lacked notice, and he rejected the argument that the clause must have been mutually negotiated. Somers-Hill argued that the Florida forum was unreasonable for a cruise that made no stops in Florida, that California had a materially greater interest in the action due to the residency of the parties, and that she would effectively be denied her day in court. Such general assertions were insufficient to overcome the heavy burden of proof to establish that the clause was unreasonable. Finally, Somers-Hill argued that the California state court had concurrent jurisdiction over the action under the Saving-to-Suitors Clause. However, Judge Gelfound answered that the Saving-to-Suitors Clause “does not alter the enforceability of an agreement between the parties to litigate their claims in a particular forum.” Accordingly, Judge Gelfound granted the motion to dismiss (conditioned on the cruise line waiving the statute of limitations defense based on the one-year period specified in the Passage Contract).
Provision in insurance policies, “Subject to Taiwanese Law and Jurisdiction,” is a permissive, not mandatory, forum-selection clause, which did not require dismissal of suit brought in Florida seeking to recover for loss and damage to vessels covered under the policies; Alexander Marine Co. v. Fubon Insurance Co., No. 4D2025-2413, 2026 Fla. App. LEXIS 7173 (Fla. App. 4th Dist. Sept. 16, 2026) (Shepherd).
Alexander Marine, a Taiwanese business that manufactures and sells yachts, entered into two marine insurance policies with Fubon Insurance, a Taiwanese insurer, relating to the shipment of three yachts from Kaohsiung, Taiwan to Port Everglades, Florida. A fire during the shipment destroyed two yachts and damaged the third. The policies provided: “Subject to Taiwanese Law and Jurisdiction if the policy [sic] dispute.” The parties disputed the amount payable, and Alexander Marine filed suit against Fubon in state court in Broward County, Florida. Fubon moved to dismiss the complaint based on the forum-selection provision and, alternatively, based on forum non conveniens. Judge Robinson dismissed the case solely based on the forum-selection clause (with no findings on forum non conveniens), and Alexander Marine appealed. Writing for the Court of Appeal, Judge Shepherd was presented with the question of whether the clause was mandatory, requiring dismissal absent a showing that enforcement would be unreasonable or unjust. Judge Shepherd noted the absence of words expressing exclusivity, such as “shall,” “must,” or “exclusive.” She explained: “Here the provision states only that a policy dispute is ‘[s]ubject to Taiwanese Law and Jurisdiction.’ The provision does not state: suit ‘shall’ or ‘must’ be brought in Taiwan; Taiwan has ‘exclusive’ jurisdiction; disputes must be litigated ‘only’ in Taiwan; or any other language demonstrating that Taiwan is the sole permissible forum.” As Judge Robinson dismissed the case based on the forum-selection provision that the appellate court considered permissive and not mandatory, the court reversed the case for Judge Robinson to decide the alternative argument—forum non conveniens.
Kenneth G. Engerrand
Brown Sims, P.C.
Houston 1990 Post Oak Blvd Suite 1800 Houston, TX 77056 O 713.629.1580
New Orleans 365 Canal Street Suite 2900 New Orleans, LA 70130 O 504.569.1007
Gulfport 1915 23rd Suite B Gulfport, MS 39501 O 228.867.8711
Miami 2801 SW 149th Ave Suite 120 Miramar, FL 33027 O 305.274.5507
Quote
From Judge Solomson, Chief Judge of the United States Court of Federal Claims, in Revelations Counseling & Consulting, LLC v. United States, 180 Fed. Cl. 721, 2026 U.S. Claims LEXIS 804 (Fed. Cl. Apr. 17, 2026):
When the aircraft carrier U.S.S. Yorktown was badly damaged during the Battle of the Coral Sea, it was estimated that it would take a minimum of three months to restore her to seaworthiness. But because the United States had received intelligence of Japanese activity near Midway Island, Admiral Nimitz determined that the Yorktown had to be ready to sail immediately with the rest of the fleet. The repair crew at Pearl Harbor, laboring around the clock, had the ship ready in three days — an unprecedented feat of engineering and an extraordinary dedication to service of country. Whether in response to questions regarding the Yorktown's repair, or at some other point during the American war effort, such high quality efforts and effectiveness were characterized as "good enough for government work." Thus the phrase "good enough for government work" entered our vernacular as a laudatory expression. Unfortunately, over the years, the phrase has morphed into a pejorative describing mediocre or merely passable work performed by, or on behalf of, the government.
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© Kenneth G. Engerrand, September 30, 2026; redistribution permitted with proper attribution.
