September 2025 Longshore Maritime Update No. 316
Notes from your Updater:
For 13 years, the City of Mackinac Island, Michigan “worked in relative harmony” with three companies that provided ferry service between mainland Michigan and the island (“a special place”), pursuant to a Franchise Agreement. “But Gordon Lightfoot’s gales of November came to the Straits early when private equity brought the ferries under common ownership.” The City adopted a new ordinance that gave the City the authority to regulate the rates, and the ferry companies brought this suit in admiralty in federal court in Michigan, challenging the basis for the City’s action. On June 30, 2025, Judge Jonker granted a preliminary injunction to the ferry companies, enjoining the City from implementing the ordinance during the pendency of the suit. See Shepler’s Inc. v. City of Mackinac Island, No. 2:25-cv-36, 2025 U.S. Dist. LEXIS 133904 (W.D. Mich. June 30, 2025).
We have reported that Dr. Robert Stern, who “believes it to be his responsibility to guard the national resources of Long Beach Island and the waters adjacent to it, including the land animals, plants, and marine life,” and his organization, Save Long Beach Island, brought suit in federal court in New Jersey against the Department of Commerce, the Secretary of Commerce, and the National Marine Fisheries Service to object to the development of several windfarms in the waters of the Atlantic Ocean off the coast of New York and New Jersey. Finding that Stern lacked standing and that his claims were not ripe and were moot, Judge Kirsch dismissed the suit without prejudice. See Save Long Beach Island v. U.S. Department of Commerce, No. 3:23-cv-1886, 2024 U.S. Dist. LEXIS 35699 (D.N.J. Feb. 29, 2024). On June 11, 2025, Judge Kirsch addressed the claims of Save Long Beach Island and Dr. Stern, challenging six Incidental Harassment Authorizations and one Letter of Authorization issued by the National Marine Fisheries Service to windfarm developers off the coast of New York and New Jersey (focusing on two specific whale species—the North Atlantic Right Whale and the Humpback Whale) and directed that the case be closed. See Save Long Beach Island v. United States Department of Commerce, No. 3:23-cv-1886, 2025 U.S. Dist. LEXIS 110630 (D.N.J. June 11, 2025). On July 2, 2025, Judge Kirsch issued an amended opinion, superseding his opinion issued on June 11, 2025, but dismissing the case for lack of standing and on the merits. See Save Long Beach Island v. United States Department of Commerce, No. 3:23-cv-1886, 2025 U.S. Dist. LEXIS 125929 (D.N.J. July 2, 2025). Also on July 2, Judge Gallagher of the United States District Court for the District of Maryland dismissed several counts in the suit by the Mayor and City Council of Ocean City Maryland against the United States Department of the Interior, seeking to set aside the approval of the construction and operations plan for the Maryland Offshore Wind Project to be located off the coast of Ocean City, Maryland and Fenwick Island, Delaware (based on violations of the Administrative Procedure Act and a number of federal environmental statutes. See Mayor and City Council of Ocean City, Maryland v. U.S. Department of the Interior, No. 24-3111, 2025 U.S. Dist. LEXIS 125644 (D. Md. July 2, 2025).
On July 3, 2025, Judge Young of the United States District Court for the District of Massachusetts dismissed some but not all of the counts brought in the suit by several states and one private group against agencies and executives of the United States, challenging the pause of federal agency approvals for offshore and onshore wind energy projects. See Commonwealth of Massachusetts v. Trump, No. 1:25-cv-11221, 2025 U.S. Dist. LEXIS 126926 (D. Mass. July 3, 2025).
The saga continues for the civil asset forfeiture action brought by the United States against the M/Y AMADEA, a 348-foot luxury superyacht purportedly owned by a Russian national subject to economic sanctions. Judge Ho of the United States District Court for the Southern District of New York declined to order an interlocutory sale of the superyacht, ruling that monthly expenses of at least $743,750 were not out of order for a yacht like the AMADEA. See United States v. THE M/Y AMADEA, No. 1:23-cv-9304, 2024 U.S. Dist. LEXIS 104690 (S.D.N.Y. June 11, 2024). Eventually, Judge Ho granted the United States’ motion for case-dispositive discovery sanctions and ordered forfeiture of the superyacht. The claimants to the superyacht appealed several of Judge Ho’s orders, including the judgment of forfeiture, and they moved for a stay pending appeal. Judge Ho denied the claimants’ request, and the United States moved for a cost bond for the past and future taxable costs, stating that since arresting the vessel, it has spent approximately $32 million for transporting, maintaining, and storing the vessel (with approximately $25.6 million of that amount in taxable costs). The United States estimated that it would incur another $10 million in taxable costs during the appeal. Although Judge Ho did not believe that the claimants had conducted themselves well during the litigation, he acknowledged that they had the right to appeal, and he declined to exercise his discretion to require the bond. See United States v. THE M/Y AMADEA, No. 1:23-cv-9304, 2025 U.S. Dist. LEXIS 135863 (S.D.N.Y. July 16, 2025).
The Update has previously reported that a panel of the Fifth Circuit held that the Texas Commission on Environmental Quality acted arbitrarily and capriciously under Texas law by failing to explain why it declined to impose certain emissions limits on a new liquified natural gas plant and export terminal in Port Arthur, Texas that Port Arthur LNG plans to build, as those limits had been previously imposed on Rio Grande LNG. See Port Arthur Community Action Network v. Texas Commission on Environmental Quality, No. 22-60556, 2023 U.S. App. LEXIS 30309 (5th Cir. Nov. 14, 2023) (Graves). On February 16, 2024, the panel withdrew that order and agreed to certify this question to the Texas Supreme Court: “Does the phrase ‘has proven to be operational’ in Texas’s definition of ‘best available control technology’ codified at Section 116.10(1) of the Texas Administrative Code require an air pollution control method to be currently operating under a permit issued by the Texas Commission on Environmental Quality, or does it refer to methods that TCEQ deems to be capable of operating in the future?” See Port Arthur Community Action Network v. Texas Commission on Environmental Quality, No. 22-60556, 2024 U.S. App. LEXIS 3777 (5th Cir. Feb. 16, 2024) (per curiam). On February 14, 2025, the Texas Supreme Court clarified that “the existence of a previous permit issued to [one facility] does not necessarily have any bearing on the standards [another facility] must meet to satisfy the [Best Available Control Technology] requirement.” Port Arthur Community Action Network v. Texas Commission on Environmental Quality, 707 S.W.3d 102, 109 (2025) (Blacklock). As the decision from the Texas Supreme Court rejected the argument in the challenge to the decision not to impose the emissions limitations to the LNG facility, on August 12, 2025, the Fifth Circuit denied the petition for review. See Port Arthur Community Action Network v. Texas Commission on Environmental Quality, No. 22-60556, 2025 U.S. App. LEXIS 20466 (5th Cir. Aug. 12, 2025) (Graves).
On August 13, 2025, the Eleventh Circuit reversed the dismissal of the discrimination claim brought by longshore workers against International Longshoremen’s Association Local 1475 Clerks and Checkers Union, which has a collective bargaining agreement with the Georgia Stevedore Association clerks and checkers at the Port of Savannah (asserting that the Local violated the duty of fair representation by giving preference to family and friends of Local 1475 leaders with respect to job assignments), noting that the decisions of the NLRB Regional Administrator and General Counsel could not be the basis for collateral estoppel. See Dodd v. International Longshoremen’s Association Local 1475, No. 24-13050, 2025 U.S. App. LEXIS 20488 (11th Cir. Aug. 13, 2025) (per curiam).
The Update reported in August 2023 that Judge Barbier of the United States District Court for the Eastern District of Louisiana granted reconsideration to Weeks Marine and held that Wilco Marsh Buggies’ patent on amphibious excavators was invalid (the asserted claims were anticipated by a “public use” of the MudMaster, manufactured by non-party DredgeMasters International, at the 1981 ConExpo trade show in Houston, Texas, and by “sales” of the MudMaster in 1980 and 1993). See Wilco Marsh Buggies & Draglines, Inc. v. Weeks Marine, Inc., No. 2:20-cv-3135, 2023 U.S. Dist. LEXIS 123984 (E.D. La. July 19, 2023). On August 19, 2025, the United States Court of Appeals for the Federal Circuit agreed and affirmed the summary judgment in favor of Weeks Marine. See Wilco Marsh Buggies & Draglines, Inc. v. Weeks Marine, Inc., No. 2023-2320, 2025 U.S. App. LEXIS 21093 (Fed. Cir. Aug. 19, 2025) (Hall, United States District Court for the District of Delaware, sitting by designation).
Applying Louisiana law as surrogate federal law to fill a gap with respect to the right of a surety to seek recovery from third parties after making payment on bonds given to the United States to secure decommissioning obligations of the holder and operator of an offshore oil and gas lease on the outer Continental Shelf, the Fifth Circuit affirmed the denial of the surety’s claims under state law based on legal subrogation, contribution, and unjust enrichment. See Lexon Insurance Co. v. Chevron U.S.A. Inc., No. 24-20347, 2025 U.S. App. LEXIS 21221 (5th Cir. Aug. 19, 2025) (Ramirez).
The Update has reported on the ongoing constitutional issues under the Appointments Clause with respect to administrative law judges after the 2018 decision of the Supreme Court in Lucia v. SEC. On August 19, 2025, the Fifth Circuit upheld the preliminary injunctions issued by federal district judges, halting proceedings before the National Labor Relations Board because the provisions insulating administrative law judges from removal except for good cause (determined by the Merit Systems Protection Board) and board members from removal except for neglect of duty or malfeasance in office are unconstitutional. See Space Exploration Technologies Corp. v. National Labor Relations Board, No. 24-50627 c/w Nos. 24-40533 and 24-10855, 2025 U.S. App. LEXIS 21226 (5th Cir. Aug. 19, 2025) (Willett). Judge Wiener dissented in part, disagreeing with the issuance of a preliminary injunction because the employers failed to prove that they would suffer irreparable harm.
On August 19, 2025, the Georgia Court of Appeals held that the relaxed causation standard in FELA cases (also applicable in Jones Act cases) did not excuse the failure to provide expert medical testimony that the railroad worker’s osteoarthritis was caused by his work duties, stating: “[T]he relaxed causation standard [under FELA] is simple enough to meet in cases involving readily understood injuries, e.g., those that result from being hit by a train. But when there is no obvious origin to an injury and it has multiple potential etiologies, expert testimony is necessary to establish causation.” See Norfolk Southern Railway Co v. Evans, No. A25A1180, 2025 Ga. App. LEXIS 342 (Ga. App. 4th Div. Aug. 19, 2025) (Mercier).
On August 20, 2025, Judge Brown of the United States District Court for the Southern District of Texas held that non-operator W&T Energy sufficiently pleaded willful misconduct against operator Anadarko within the exception in the exculpatory clause in the Operating Agreement in connection with damage to an offshore oil and gas well and that W&T Energy sufficiently alleged that Anadarko purposefully did not disclose the extent of damage, intending for W&T Energy to contribute to the cost of plugging and abandoning the well that Anadarko had destroyed. See W&T Energy VI, LLC v. Anadarko US Offshore LLC, No. 3:25-cv-67 (S.D. Tex. Aug. 20, 2025).
On August 21, 2025, the Eleventh Circuit affirmed the decision of Judge Martinez of the United States District Court for the Southern District of Florida that the City of Key West was not guilty of an unconstitutional taking of the lease of Pamela and Stuart Kessler when it cancelled the lease for a boat slip for their floating home at a city-operated marina (where they lived for more than a decade). See Kessler v. City of Key West, No. 24-13269, 2025 U.S. App. LEXIS 21371 (11th Cir. Aug. 21, 2025) (per curiam).
On August 22, 2025, a panel of the Third Circuit, on rehearing and over the dissent of Judge Matey, held that the bankruptcy court hearing the bankruptcy of Congoleum Corp., acted within its discretion in reopening the case to hold that Congoleum’s former corporate sibling, Bath Iron Works, which has operated a shipbuilding facility in Maine since 1884, was not liable for environmental claims from the operation of a Congoleum Flooring manufacturing facility in Kearny, New Jersey. See In re Congoleum Corp., No. 23-1295, 2025 U.S. App. LEXIS 21492 (3d Cir. Aug. 22, 2025) (Chagares).
On the LHWCA Front . . .
From the federal appellate courts
Eleventh Circuit affirmed district court’s dismissal of worker’s LHWCA claim for failing to comply with the ALJ’s discovery orders; Horizon Shipbuilding, Inc. v. Jackson, No. 24-12858, 2025 U.S. App. LEXIS 19230 (11th Cir. July 31, 2025) (per curiam).
Albert Jackson injured his knee while working for Horizon Shipbuilding, and he brought a claim for benefits under the LHWCA against Horizon and its carrier, American Longshore Mutual Association. The case was referred to Administrative Law Judge Donaldson, and there were extensive discovery disputes. Eventually, ALJ Donaldson ordered Jackson to provide responses to interrogatories and requests for production, to submit to a medical examination, and to execute authorizations for medical records. When Jackson failed to comply, ALJ Donaldson issued an Order Certifying Facts to District Court with Recommendation for Dismissal of Longshore Proceedings (based on Jackson’s failure to provide authorizations and to attend the medical examination). Horizon and ALMA then filed this suit in federal court in Florida, requesting that the federal court dismiss Jackson’s LHWCA claim with prejudice in accordance with Section 27(b) of the LHWCA. Magistrate Judge Cannon agreed that the sanction of dismissal was warranted, reasoning that Jackson was not free to disregard the orders of the ALJ even though he disagreed with them. She recommended that Jackson’s LHWCA claim be dismissed with prejudice, and Jackson appealed to Judge Rodgers. As Jackson did not refute that he did not comply with ALJ Donaldson’s discovery orders, Judge Rodgers accepted the recommendation and dismissed Jackson’s LHWCA claim with prejudice (Judge Rodgers also rejected Jackson’s attempt to assert a constitutional challenge to the limitation on recording of ALJ proceedings under 29 C.F.R. § 18.86, noting that the Benefits Review Board had ruled that there is no constitutional right to record judicial or administrative government proceedings). See September 2024 Update.
Jackson appealed the dismissal to the Eleventh Circuit, which began with a cogent summary of the administrative process before the Office of Administrative Law Judges. Adherence to the administrative process served as the basis for the authorization in Section 27(b) of the LHWCA for district courts “to impose sanctions on parties who disobey or resist lawful orders issued by ALJs during administrative proceedings.” The court noted that the statute specifies that the district court may “punish” a party who disobeys lawful orders during the administrative proceedings “in the same manner and to the same extent as for a contempt committed before the court.” When a finding of civil contempt is established by clear and convincing evidence, the district court is given broad discretion to fashion the sanction for civil contempt. The Eleventh Circuit cautioned that dismissal is a severe sanction that may only be imposed when a party engages in a clear pattern of delay or willful contempt (contumacious conduct) and when lesser sanctions would not suffice. Jackson argued that it was unreasonable for ALJ Donaldson to require him to travel 80 miles for an examination using the car he shared with his wife, but the Eleventh Circuit replied that Jackson cited no authority “specifying a maximum distance a claimant may be required to travel or suggesting that the ALJ’s order was otherwise unreasonable.” Jackson did not allege that he had no way of transporting himself to the appointment, and the employer/carrier agreed to reimburse him for the transportation cost. With respect to the medical authorizations, Jackson argued that they were overly broad, but he did not argue that he was unable to execute and return them. As Jackson continued to disobey ALJ Donaldson’s orders and failed to attend a hearing on the employer/carrier’s motion to dismiss, he demonstrated a pattern that established that a lesser sanction would not suffice. Finally, Jackson challenged the striking of his constitutional challenge to the regulation prohibiting recording of administrative proceedings (29 C.F.R. Sections 18.81(a) and 18.86). The Eleventh Circuit responded that the prohibition on recording administrative proceedings did not affect his ability to attend the medical examination or to execute authorizations. Thus, the district court was not required to certify his constitutional challenge to the Attorney General and did not abuse its discretion in striking his notice of a constitutional challenge. Accordingly, the Eleventh Circuit affirmed the dismissal of Jackson’s LHWCA claim as a sanction for civil contempt for failing to comply with ALJ Donaldson’s discovery orders.
From the federal district courts
ALJ’s compensation order was not enforceable in federal court under Section 21(d) of the LHWCA during the appeal to the BRB, but the District Director’s supplemental order assessing a 20% penalty for compensation that was not timely paid was enforceable, regardless of whether the amount was properly calculated; Heath v. Gulf Island Fabrication, Inc., No. 2:24-cv-2939, 2025 U.S. Dist. LEXIS 70233, 142443 (E.D. La. Apr. 14, 2025, July 14, 2025) (Fallon).
Jimmy Heath injured his left shoulder and biceps on January 11, 2017 while working as a shipfitter supervisor for Grand Island Fabrication. Heath sought LHWCA benefits, and Gulf South Risk Services paid compensation and medical benefits but disputed Heath’s claim that he suffered a traumatic brain injury, arguing that Heath did not report hitting his head or losing consciousness and that the physician who examined him after the accident recorded no signs of a head injury. The case was referred to the Office of Administrative Law Judges for trial, and Administrative Law Judge Donaldson issued a Decision and Order on August 2, 2024, finding that the brain injury was compensable (and ordering payment of compensation). On August 5, 2024, the District Director served Gulf Island Fabricators and Gulf South Risk Services with calculations of the amount of compensation and interest owed ($103,095.10). The employer/carrier filed a motion for reconsideration, which was granted in part. However, Judge Donaldson did not change her decision with respect to the entitlement to compensation. The employer/carrier appealed to the Benefits Review Board. On August 30, 2024, Heath filed a motion asking the District Director to assess penalties against the employer/carrier for failing to pay the compensation by August 15, 2024 (ten days after the District Director’s calculations). The employer/carrier paid $103,095.10 to Heath on September 23, 2024, but the District Director issued a Supplemental Compensation Order on December 3, 2024, finding the employer and carrier in default and ordering payment of a 20% penalty ($20,619.02) plus interest. On December 26, 2024, Heath filed this suit in Louisiana federal court, requesting enforcement of Judge Donaldson’s order of August 2, 2024 (arguing that the employer/carrier had sporadically paid compensation pursuant to the order and the payments had been at an incorrect rate). Heath also sought enforcement of the Supplemental Compensation Order of December 3, 2024. The employer and carrier challenged the authority of the federal court to enforce Judge Donaldson’s compensation order and the District Director’s Supplemental Compensation Order. The employer/carrier argued that there was no final Decision and Order from Judge Donaldson to enforce because that order provided that the District Director would make the calculations necessary to carry out the order, “including any Richardson adjustment” (adjusting wages earned post-injury to represent the wages that the job paid at the time of the injury). However, the District Director calculated the amount owed without performing the adjustment. Judge Fallon stated that the enforceability of Judge Donaldson’s decision was governed by Section 21(d) of the LHWCA, and that the Fifth Circuit has consistently held that Section 21(d) “provides for enforcement of an appealed order only after the appeal is finally resolved by the Board.” As the employer/carrier appealed to the BRB and the appeal was still pending, Judge Fallon concluded that the court lacked jurisdiction under Section 21(d) to enforce the August 2, 2024 compensation order, stating that Heath would have to wait until the appeal to the Board was complete in order to sue to enforce the order. The enforceability of the District Director’s Supplemental Compensation Order required a different analysis. Absent a stay from the BRB, the employer and carrier are obligated to make timely payments pursuant to the ALJ’s order. The District Director is authorized to issue a supplemental compensation order providing for penalties for failing to pay the award, pursuant to Section 914(f), and that order is final and immediately enforceable by the federal district court as long as the order is in accordance with law. The employer and carrier argued that the Supplemental Compensation Order was not in accordance with law because the District Director did not make the Richardson calculation that was required by Judge Donaldson. Judge Fallon disagreed, reasoning that the federal judge’s inquiry “is limited to the lawfulness of the supplemental orders of default and does not include the procedural or substantive correctness of [] underlying compensation orders.” Accordingly, Judge Fallon held that he had jurisdiction to enforce the Supplemental Compensation Order (and did not have to address whether the District Director correctly calculated the correct amount due or not).
Heath then moved for summary judgment that he was entitled to the penalty, and the employer and carrier moved for reconsideration of Judge Fallon’s prior rulings. The employer and carrier repeated their argument that the District Director failed to make the Richardson adjustment, and Judge Fallon reiterated that the argument was “immaterial.” The District Director followed the procedure for the declaration of a default as set forth in the LHWCA, and the argument about the amount was substantive and beyond the scope of review in an enforcement proceeding pursuant to Section 18(a). Therefore, Judge Fallon granted summary judgment to Heath and ordered the employer and carrier to pay the penalty.
Vessel owner did not breach any Scindia duties in connection with injury to barge cleaner when a piece of hardened sulfur fell on his head; In re SIM 2 TANK BARGE, No. 3:24-cv-36, 2024 U.S. Dist. LEXIS 120345 (S.D. Tex. June 25, 2025) (Edison), recommendation adopted, 2025 U.S. Dist. LEXIS 143527 (S.D. Tex. July 28, 2025) (Brown).
Gulf Sulfur Services, which owns and operates a liquid and solid sulfur-handling facility and marine terminal in Galveston, Texas, time chartered the SIM 2 from its owner, Savage Inland Marine, to supply liquid sulfur to customers. The vessel has heating coils to keep the sulfur it transports in a liquid state. Savage discovered a leak in the heating coils that was causing the sulfur to solidify, and its port engineer, Kristen Dumaine, hired Delesco to remove the solidified sulfur and clean the heating coils so that the leak could be identified. Anacleto Acosta was part of a crew provided by Delesco to clear the hardened sulfur on the barge that was berthed at Gulf Sulfur’s terminal in Galveston. Acosta had worked for Delesco and its predecessor since 1995, and he has cleaned sulfur barges more than a dozen times. The crew was using an air-chipping hammer to chip away at the hardened sulfur. The work proceeded without incident for two days. On the third day, Acosta was injured when a large piece of sulfur broke free and fell on him. Delasco determined that the sulfur fell because of vibration from the chipping guns that were being used near the base of the tank wall. Acosta filed suit against the owner and charterer of the barge in state court in Galveston County, Texas, and the charterer removed the case to federal court based on diversity. The owner of the barge filed this action in federal court in Texas, seeking exoneration/limitation of liability, and Acosta filed a claim in the limitation action and moved to bifurcate the suit, trying the core limitation issues (negligence and privity) and then allowing Acosta to have a jury determine the fault of additional parties, the relative degrees of fault, and damages. Alternatively, Acosta asked the court to try all of the issues, with the judge deciding negligence/unseaworthiness and privity, and a jury (because the injury case was removed based on diversity) deciding all non-limitation issues (with the benefit that the judge could use the jury as an advisory jury on liability). The owner was opposed to the concurrent trial, but it was not opposed to bifurcating the case, although it argued that Acosta could only try the non-limitation issues to a jury if the court denied limitation. Magistrate Judge Edison noted the efficiency of the procedure used by other judges in which the court first tries fault and allocation of fault; however, he declined to follow that procedure, reasoning that “allocation of liability is not a core limitation issue that must be decided before the bench in a federal forum.” Therefore, he held that the court would hold a bench trial to determine negligence/unseaworthiness and privity. If the court exonerates the owner, then the federal case would be over. If the court finds liability and that the owner did not establish lack of privity or knowledge, the court will deny limitation, and Acosta will be allowed to proceed as if the limitation suit never existed, having a jury allocate fault and award damages. And, if the owner succeeds in limiting liability, a jury may still decide the issues of allocation of fault and damages if the claimants agree to stipulations that protect the owner’s rights under the Limitation Act. See October 2024 Update.
Acosta’s claim against Savage, the vessel owner in the limitation action, sought relief for negligence, gross negligence, and unseaworthiness. Savage moved for summary judgment, arguing that the LHWCA provides Acosta’s exclusive remedy, and he was not entitled to relief because Savage did not breach any of the Scindia duties. Acosta contested the turnover duty and the active control duty. With respect to the turnover duty, Magistrate Judge Edison reasoned that “Acosta must confront a litany of cases holding that vessel owners are ‘under no duty to protect [claimants] from risks that were inherent in the carrying out of the contract.’” Acosta responded that hardened sulfur is “an operational issue” as opposed to “a safety issue,” but Magistrate Judge Edison called that a “distinction without a difference.” Delesco was hired to remove the hardened sulfur, and it was the method of removing the sulfur that caused the piece of sulfur to fall on Acosta’s head. Therefore, Magistrate Judge Edison recommended that there was no violation of the turnover duty “because Acosta was hired to remedy the very condition that caused his injury, and the risk of remedying that condition was inherent in Delesco’s work.” Acosta argued that Savage exercised active control over the cleaning because port engineer Dumaine testified that her job involved overseeing and supervising maintenance repairs when a vessel is in port, which comported with Savage’s contractual obligation to ensure that all repairs and maintenance are completed. That was insufficient to establish that Savage had active control over “the actual methods and operative details” of Acosta’s work. And it did not establish active control at the time of the accident that Savage changed the job steps for the removal after the accident. Magistrate Judge Edison noted that Dumaine was not in the tank at the time of the incident and did not instruct the crew on how to remove the hardened sulfur. Accordingly, Magistrate Judge Edison recommended that the motion for summary judgment be granted (adding that the claim for gross negligence “necessarily fails”). Acosta objected to the recommendation, but Judge Brown agreed with Magistrate Judge Edison and ordered exoneration of Savage.
Employee of electrical subcontractor who was injured during repair of a barge provided sufficient evidence of reckless conduct of the ship repairer for the judge to deny the repairer’s motion for summary judgment on the worker’s claim for punitive damages; Tassin v. Buck Kreihs Marine Repair, LLC, No. 2:24-cv-1795, 2025 U.S. Dist. LEXIS 124658 (E.D. La. July 1, 2025) (Zainey).
Moran Towing contracted Buck Kreihs Marine Repair to perform repair work on the barge CHARLESTON at Buck Kreihs repair facility in New Orleans, Louisiana on the Mississippi River. Buck Kreihs hired Rio Marine to perform electrical work, and Rio Marine sent Aaron Tassin, a service supervisor in its electrical department, to disconnect the motor wiring on the barge’s port-side ballast motor. Employees of Buck Kreihs were removing the top metal cover on the ballast motor when Tassin was deboarding the barge. The top metal plate slid off the housing of the port ballast motor and knocked Tassin to the deck of the barge. Tassin brought this suit in federal court in Louisiana against Buck Kreihs and Moran Towing. He asserted claims against both defendants for negligence under the general maritime law, and he brought a claim against Moran Towing for negligence under Section 5(b) of the LHWCA. He also sought punitive damages against both defendants for willful and wanton conduct. Moran Towing moved for summary judgment, and Judge Zainey dismissed the claims against it for lack of opposition from Tassin. Buck Kreihs moved for summary judgment on the claim for punitive damages, arguing that the facts did not give rise to the level required to warrant punitive damages—conduct “so egregious as to constitute gross negligence, recklessness or callous disregard for the rights of others, or actual malice or criminal indifference.” Judge Zainey disagreed, reasoning that a punitive damage claim under the maritime law is “highly fact intensive.” In this case, Tassin set forth sufficient evidence of reckless indifference “through its job site supervision, failure(s) to adhere to internal safety policies, and hiring practices.” Therefore, Judge Zainey denied the motion for summary judgment.
Longshore worker who fell while descending the gangway of the vessel presented fact question of breach of the Scindia turnover duty but not for breach of the active control duty or the duty to intervene; Brown v. MSC Ship Management, Ltd., No. 4:23-cv-182, 2025 U.S. Dist. LEXIS 125151 (S.D. Ga. July 1, 2025) (Wood).
Marlon J. Brown was injured while employed as a longshore worker (lasher) by Gateway Terminals at Container Berth 4 of the Garden City Terminal of the Georgia Ports Authority. Brown claims that he fell while descending the gangway (with a lashing tool in his hand) to disembark the M/V MSC GAYANE because a piece of the handrail was out of place, and the slip-resistant treatment on the steps was worn. Brown brought this suit in state court in Chatham County, Georgia against the owner/operator of the vessel, asserting negligence claims under Section 5(b) of the LHWCA, and the defendants removed the case to federal court based on diversity. The parties challenged each other’s experts, and Magistrate Judge Ray first addressed the defendants’ arguments with respect to Joseph P. Crosson, an engineer specializing in metallurgical and weld-related structural failures and marine casualty investigations, who was hired to discuss the construction and deterioration of the gangway. He opined that there was more wear on the lower steps of the gangway with less slip resistance, there was evidence of disrepair in the lower steps, and there was no handrail on either side of the lower five steps. The defendants accepted Crosson’s qualifications with respect to engineering and metallurgy, but they argued that he was not qualified to testify about slip resistance because he lacked expertise or certification in tribometry (the study of slippage rates and friction coefficients). Magistrate Judge Ray agreed that training in tribometry would qualify the expert, but he added that the “witness need not be the best or most qualified authority in a field to be admitted as an expert.” The objection was, instead, “fodder for cross examination.” The defendants objected to the reliability of Crosson’s opinions because he did not inspect the gangway, did not take any readings, use any scientific equipment, perform any calculations, or generally engage in any “scientific inquiry of any kind.” Crosson looked at contemporaneous photographs and measurements that were taken years after-the-fact. Magistrate Judge Ray did not believe that the methodology was unreliable, stating that Crosson could “premise his opinions based on visual inspection and his own experience and expertise.” Finally, Magistrate Judge Ray agreed that Crosson’s testimony about the slip resistance would be helpful to the jury, but he excluded the opinions with respect to the state of disrepair as immaterial and his testimony on the absence of the handrails (obvious from photographs) as unhelpful. The defendants challenged the testimony of Katharine Sweeney, a master mariner who works as a marine consultant, with respect to gangway design, human factors analysis in connection with the handrails and their role in Brown’s fall, what a longshore worker would notice, and the role of slip resistance in the fall. Magistrate Judge Ray agreed that Sweeney’s opinion with respect to the design of the gangway should be excluded because her expertise on use and repair of gangways did not qualify her to testify about design or manufacture. Likewise, Magistrate Judge Ray excluded the opinions of Sweeney about what longshore workers would have or should have noticed about the condition of the gangway as they are suitable for opinion of experts in human factors engineering, not a master mariner. In contrast to Crosson’s opinion, Sweeney’s opinion regarding slip resistance was excluded because she did not show qualifications or sound methodology to address a difference in slip resistance from the top to the bottom of the gangway as a cause of the fall. Magistrate Judge Ray did allow Sweeney’s opinion that the crew should have been more attentive to the design and wear of the gangway because of the risk of surges to the vessel while it is in port; however, he excluded Sweeney’s opinion with respect to the duties of the vessel defendants with respect to control of the gangway as those duties are governed by Scindia. Brown objected to the opinions of Marc A. Fazioli, a marine surveyor retained by the defendants, who opined with respect to the open and obvious condition of the gangway and the responsibilities of the longshore worker, the stevedore, and the vessel defendants. Magistrate Judge Ray rejected the objection to Fazioli’s qualifications, noting his work as a master of two types of vessels and teaching marine safety at Texas A&M University. Magistrate Judge Ray also denied the objection to the reliability of Fazioli’s opinions with respect to the responsibility of the longshore workers/stevedore and with respect to Brown’s descending the gangway in an uncontrolled manner, reasoning that Fazioli “inspected the documented evidence of Plaintiff’s fall and the circumstances surrounding the incident and relied on his personal knowledge of the maritime industry’s customs to arrive at his opinions.” Brown objected to Fazioli’s opinions with respect to the obligations of the stevedoring company for the gangway on the ground that the opinions were improper legal conclusions that contradicted legal principles establishing that the vessel is responsible for the gangway. Magistrate Judge Ray disagreed that gangways are under the control of the vessel as a matter of law, and he allowed the testimony with the caveat that Fazioli could testify as to practices normally followed by the longshore workers, but he could not give legal conclusions or instruct the jury on legal requirements of statutes and regulations. Finally, Magistrate Judge Ray excluded the testimony that the vessel passed inspection a month after the accident, as the gangway could have been in a significantly different condition at that time. Brown objected to the exclusion of opinions of Crosson and Sweeney, but Judge Wood denied the objections and affirmed the decision of Magistrate Judge Ray. See August 2025 Update.
The defendants moved for summary judgment that they did not violate the Scindia duties. Brown argued that he presented an exception to Scindia when a “contract provision, positive law, or custom” imposes a “general duty by way of supervision or inspection to exercise reasonable care to discover dangerous conditions that develop within the confines of the cargo operations.” The defendants argued that Brown’s claims with respect to the gangway were a design defect claim that amounted to an unseaworthiness claim that was abolished by the 1972 Amendments to the LHWCA. Judge Wood was not impressed by either argument. She rejected the defendants’ argument based on the negligence characterization of the accident, stating that Brown attributed his fall to the degree of wear of the gangway steps and the failure to keep the rope handline taut, which sounded in negligence. The defendants did not dispute that it is customary for a crewmember to monitor the gangway, but Judge Wood did not believe that a policy of having a gangway watchman imposed a general duty of supervision and inspection, stating: “Mere observation of the gangway does not create a general duty of inspection and supervision because to hold as much would ‘saddle the shipowner with precisely the sort of nondelegable duty that Congress sought to eliminate by amending section 905(b).’” The presence of the gangway watchman was relevant to the examination of the three Scindia duties. The defendants cited authority that a slick, wet deck without a non-skid surface is not a latent defect for an experienced stevedore, but Judge Wood answered that Brown was complaining about the wear of the lower stairs compared to the upper stairs. The defendants argued that it was light outside at the time of the accident and that Brown had ascended the gangway without noticing the condition; however, Brown submitted a declaration from a longshore worker behind Brown at the time of the accident that the condition was not obvious to him until he made a close inspection after the fact. The defendants also asserted that the gangway could have been safely traversed by a reasonably competent longshore worker, claiming that Brown was running or jogging down the gangway; and videos showed Brown moving quickly. However, the videos and testimony of other workers reflected that Brown was moving at the same rate as the others and presented a fact question whether the gangway could have been safely traversed. As there were disputes about the condition of the tread and whether that condition was latent, Judge Wood declined to grant summary judgment on the turnover duty. With respect to the active control duty, the only dangerous condition at issue was the tautness of the rope handline because the evidence did not demonstrate that it was loose at turnover. Judge Wood found that there was an issue whether the duty was owed because the vessel crew had control of the gangway, but that did not mean that the duty was breached. The location where Brown fell was at the bottom of the gangway, and the witness testified that, as Brown fell, he grabbed for the rope, but it was too loose to support him. The watchman was at the top of the gangway, and there was no evidence when the rope became loose or how long it remained loose. In the absence of constructive knowledge of the dangerous condition, Judge Wood granted summary judgment on the active control duty. Similarly, Judge Wood granted summary judgment on the duty to intervene (the fact that there was a watchman “does not mean that the watchman or any member of the vessel’s crew observed the loose rope handline”).
From the state courts
Appellate court conditionally granted a writ of mandamus reversing exclusion of evidence of synthetic cannabinoid use by longshore worker who was crushed to death during the movement of cargo in a warehouse; In re West Gulf Maritime Association, No. 09-25-00073-CV, 2025 Tex. App. LEXIS 5352 (Tex. App.—Beaumont July 24, 2025) (per curiam).
Pamela D. Thomas, a longshore worker employed by P.C. Pfeiffer, was crushed to death in a warehouse in Beaumont, Texas while positioning bales of paper fiber for loading onto railcars using a forklift operated by her foreman, Joseph Zeno. Thomas left her post without telling her supervisor, and her crewmembers looked for her without success. They resumed operations unaware that she had returned and was among the bales on the warehouse floor. The autopsy and toxicology report revealed illegal synthetic cannabinoids in her post-mortem blood samples. The representative of her estate, Gloria Broussard, brought suit against West Gulf Maritime Association and others in state court in Jefferson County, Texas. The other defendants settled or were nonsuited, leaving West Gulf Maritime, the trade association that administers collective bargaining agreements and payroll for its employer members, as the lone defendant. District Judge Templeton excluded all testimony regarding the ingestion of synthetic cannabinoid on the ground that the probative value of qualitative evidence of cannabinoid use, as opposed to quantitative evidence of cannabinoid use, was outweighed by the prejudicial effect that the evidence would have on the jury. West Gulf Maritime sought a writ of mandamus from the Beaumont Court of Appeals, and the appellate court found the evidence to be crucial to the issues of liability and allocation of responsibility, “because Thomas had a detectable level of the substance in her blood while she was working in a warehouse where the employees were using heavy equipment to move large, heavy objects in limited space, and one of her duties was to assist the equipment operator in moving the cargo safely.” Concluding that Judge Templeton clearly abused his discretion by excluding the evidence of Thomas’ cannabinoid use, the appellate court conditionally granted the writ of mandamus.
And on the maritime front . . .
From the federal appellate courts
Eleventh Circuit affirmed decision that owners of docked vessels failed to establish causation against passing vessel for damage allegedly caused by wake; Albano v. Perih, No. 24-12160, 2025 U.S. App. LEXIS 17114 (11th Cir. July 11, 2025) (per curiam).
Patrick J. Perih piloted his vessel through the waters of Coconut Grove, Florida toward Aventura, passing through Haulover Inlet and under the Haulover Inlet Bridge. After passing the Bill Bird Marina, Perih passed another vessel travelling in the opposite direction. Vessels owned by Isabella Marine, Ocean Resort, and Peter Jachim Albano that were moored at the Bill Bird Marina and a fuel dock were allegedly damaged by a wake, and an officer of the Florida Fish and Wildlife Conservation Commission investigated but there were no witnesses to the vessel that caused the wake, and he did not issue a citation. The vessel owners then brought this suit against Perih in federal court in Florida, alleging that he recklessly operated his boat, damaging the docked vessels. In his deposition, Perih testified that he may have caused the damage, and the investigating officer testified that it was possible that another vessel could have caused the damage. As the evidence only established that a passing vessel may have caused the damage, and it did not establish that it was Perih’s boat that caused the damage, Judge King granted summary judgment to Perih based on lack of causation. Judge King also noted that temporary repairs were performed, but that the temporary repairs and any future repairs did not or would not impact the functioning of the vessel and were cosmetic. Judge King reasoned that the damaged party in a collision case is only entitled to an award that will give him a boat as seaworthy and practically serviceable as before the incident. As the damage to the vessels was cosmetic and was not necessary to make the boats as seaworthy as before the incident, Judge King held that summary judgment was likewise appropriate for lack of evidence of recoverable damages. See May 2024 Update.
The vessel owners appealed, and after counsel for Isabella Marine and Ocean Resort withdrew, Albano proceeded pro se. He argued that there was a genuine fact issue over the causation and damage elements of his claim. With respect to causation, he cited the social media video and testimony of the officer. The Eleventh Circuit responded that, although the officer testified that the wake could have caused the damage, he admitted it was possible that another vessel caused the damage, and he added that the area is very busy with boat traffic. The fact that Albano noticed damage to the boarding ladder after the passing of Perih’s boat was insufficient to establish that the wake caused the damage to the gelcoat and transom bracket. As there was insufficient evidence to establish causation, the appellate court affirmed without having to rule on the damage dispute.
Ocean carrier could not plead equitable claims for indemnity and contribution against the inland rail carrier for damage to cargo during the inland carriage in order to avoid the nine-month time limitation for filing suit in the inland carrier’s Intermodal Rules; MSC Mediterranean Shipping Co. v. BNSF Railway Co., No. 24-3957, 2025 U.S. App. LEXIS 17312 (9th Cir. July 14, 2025) (per curiam).
MSC Mediterranean contracted to transport cargo from the Port of Zhongshan, China to Kansas City via the Port of Los Angeles. MSC Mediterranean contracted with BNSF Railway to perform the rail leg of the carriage from Los Angeles to Kansas City during which the cargo was damaged. MSC Mediterranean settled the claim for the cargo loss with the cargo owner’s insurer, and it then made a written demand to BNSF for indemnity. More than nine months after BNSF rejected the demand, MSC Mediterranean brought this action in California federal court (based on admiralty jurisdiction from the bill of lading) seeking equitable indemnification and contribution. BNSF moved to dismiss the claim as untimely based on BNSF’s Intermodal Rules and Policies Guide, which provides that actions must be brought within nine months from the date BNSF denies the claim on which the suit is brought. MSC Mediterranean argued that the Intermodal Rules do not contain an express indemnity provision and do not apply to the claims for equitable indemnity and contribution. Therefore, they are subject to laches. Judge Staton disagreed and dismissed the claim, and the Ninth Circuit agreed. The appellate court considered the argument to be foreclosed by the plain language of the Intermodal Rules, which cover all claims “in connection with loss or damage to the cargo.” MSC Mediterranean’s complaint alleged that BNSF failed to make delivery of the cargo as a result of its acts, omissions, and negligence. As the claims were based on the liability of BNSF for the cargo damage, it did not matter whether the causes of action were contractual or equitable as the claims were “in connection with the loss or damage to the cargo.” Therefore, the claims were time-barred.
Fane Lozman’s container home on floating docks in Lake Worth Lagoon was in navigable waters subject to the Rivers and Harbors Act and had to be removed; United States v. Lozman, No. 24-11477, 2025 U.S. App. LEXIS 18286 (11th Cir. July 23, 2025) (per curiam).
We are familiar with Fane Lozman’s long-running disputes with the City of Riviera Beach, Florida in which he twice defeated the City in the United States Supreme Court (including the 2013 decision that resulted in Justice Breyer’s definition for a vessel, “a reasonable observer, looking to the [structure’s] physical characteristics and activities, would consider it designed to a practical degree for carrying people or things over water”). Lozman’s string of successes ended with his challenge to the city’s development plan (as a taking of his property), which resulted in dismissal of the suit for lack of subject matter jurisdiction as it was not ripe for judicial review. See Lozman v. City of Riviera Beach, Florida, No. 23-11119, 2024 U.S. App. LEXIS 26114 (11th Cir. Oct. 16, 2024) (Pryor). Lozman filed a petition for a writ of certiorari to the Supreme Court, challenging the restriction of his waterfront property to private “residential fishing or viewing platforms” and small “docks for non-motorized boats” (claiming that the restriction forbids any economically beneficial use). In contrast to the prior grants of certiorari, on June 2, 2025, the Supreme Court declined to hear Lozman’s petition. See Lozman v. Riviera Beach, Florida, No. 24-908, 2025 U.S. LEXIS 2076 (U.S. June 2, 2025).
This opinion arises from Lozman’s construction/installation of structures in Lake Worth Lagoon in Palm Beach County, Florida (his new floating home consisting of a shipping container supported by floating docks). The United States brought this suit in federal court in Florida, asserting that the installation occurred in navigable waters of the United States, and failure to obtain authorization from the Corps of Engineers violated the Rivers and Harbors Act. The United States cited the definition that navigable waters for the Rivers and Harbors Act are “waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce.” The United States presented evidence that the Lagoon is subject to the ebb and flow of the tide and that it has been used (and is susceptible for use) to transport interstate or international commerce. Lozman argued that his property is regularly mudflats for days on end, but that did not change the fact that the property was subject to the tides. Lozman also argued that the authority of the Corps of Engineers did not extend to private property, but Judge Middlebrooks rejected that argument as the caselaw does not support the argument that the Corps lacks jurisdiction over navigable waters that are privately owned. Judge Middlebrooks ordered that Lozman remove his floating home and the floats upon which it rests unless and until he obtains authorization from the Corps. On appeal to the Eleventh Circuit, Lozman argued that the City of Riviera Beach had influenced the Corps to selectively prosecute Lozman as “retaliatory payback” for the complaint he filed with the Florida Ethics Board against a councilperson, but the appellate court declined to consider the argument because Lozman did not raise the argument in the district court. Agreeing with Judge Middlebrooks, the Eleventh Circuit affirmed the grant of summary judgment to the United States that Lozman’s floating home structure obstructed navigable waters within the meaning of the Rivers and Harbors Act.
Fifth Circuit affirmed findings and allocation of fault for damage caused by breakaway of vessels during Hurricane Ida, but the court reversed the denial of an award to a vessel that only sustained minor damage; Gulf Island Shipyards, LLC v. LaShip, LLC, No. 24-30464, 2025 U.S. App. LEXIS 19278 (5th Cir. July 31, 2025) (per curiam).
Our December 2023 Update discussed Judge Fallon’s finding in another case (after a bench trial) that LaShip was not liable for damage caused to the JOSHUA CHOUEST (owned by Reel Pipe) when a vessel that was moored at the LaShip docking facility in Houma, Louisiana became unmoored during Hurricane Ida and struck the JOSHUA CHOUEST. This suit involves damage to docks at Gulf Island Shipyards and two vessels under construction when the BETTY CHOUEST broke away from its moorings at LaShip during Hurricane Ida and was swept down the Houma Navigation Canal to the Gulf Island Shipyards. Gulf Island alleged that it was the BETTY CHOUEST that caused the WILD HORSE and WAR HORSE to become unmoored. LaShip filed a counterclaim against Gulf Island Shipyards, alleging that the BETTY CHOUEST did not contact the WILD HORSE or WAR HORSE before they broke free, and that the WILD HORSE was improperly moored and struck the BETTY CHOUEST after it broke free. Therefore, LaShip sought recovery from Gulf Island Shipyards for damages that LaShip may have to pay. Judge Fallon found that both LaShip and Gulf Island Shipyards were at fault for failing to properly moor the BETTY CHOUEST and the WILD HORSE. He found that the BETTY CHOUEST did not come into contact with the WAR HORSE or WILD HORSE while they were docked but that it did come into contact with the WILD HORSE after that vessel broke free. Judge Fallon apportioned fault to LaShip (35%) and Gulf Island Shipyards (65%) and found the damages to the WILD HORSE and BETTY CHOUEST that were apportioned accordingly. See March 2024 Update.
Gulf Island sought reconsideration of Judge Fallon’s findings of fact and conclusions of law, arguing that he committed several manifest errors. Gulf Island argued that he erred in finding fault in a 65/35 ratio, as opposed to 50/50 because he did not mention the hiring of DLS Marine to assist with the mooring plans with which Gulf Island complied, and because the evidence showed that LaShip’s vessels broke free first, before the peak hurricane winds hit the area. Judge Fallon noted that he previously described in detail his reasons for finding less fault on LaShip, and he found no manifest error in his findings. Gulf Island also argued that Judge Fallon erred in his finding of damages for the WILD HORSE of $503,130.51, based on the earlier estimate, instead of $804,420 from a later estimate. Gulf Island argued that the difference was a function of having a real bid from the shipyard, offering to do the work, rather than a first estimate. However, the increase was so substantial that Judge Fallon declined to find that explanation to be credible. Gulf Island disputed the finding that the WAR HORSE was not entitled to any recovery (because the evidence did not show contact with a Chouest vessel and the vessel remained partially moored following the storm) as there was damage that included orange paint. Gulf Island also argued that LaShip failed to prove that damage to the BETTY CHOUEST were caused by a collision with the WILD HORSE as opposed to other breakaway Chouest vessels, and it argued that the court erred in denying damages for the SALVO as it had orange paint that Gulf Island contends was caused by the BETTY CHOUEST colliding with the SALVO. Judge Fallon rejected these arguments, answering that he had considered them in his findings and that there were no inconsistencies in his findings. Therefore, he denied the request for reconsideration. See July 2024 Update.
Gulf Island appealed to the Fifth Circuit. It argued that Judge Fallon erred by not explicitly denying Gulf Island’s Act of God defense and by finding that it was negligent in its mooring arrangements and storm preparations. The Fifth Circuit held that the argument was an attack on the findings of fact on the negligence of Gulf Island. As the court did not believe that Judge Fallon erred in his finding of negligence, the court affirmed the implicit denial of the Act of God defense. Gulf Island also asserted that Judge Fallon “improperly circumvented” THE LOUISIANA Rule and THE PENNSYLVANIA Rule, but the Fifth Circuit answered that presumptions from these Rules become superfluous when the parties introduce evidence “to dispel the mysteries that gave rise to the presumptions.” As there was evidence of the negligence of the parties, Judge Fallon did not err in declining to apply the presumptions (except with respect to the SALVO). The Fifth Circuit easily rejected challenges to the allocation of fault, the value of damages to the BETTY CHOUEST and the WILD HORSE, and the decision not to award damages for the WAR HORSE. The Fifth Circuit disagreed with Judge Fallon’s decision not to award any damages for the SALVO. Judge Fallon found evidence of contact between the BETTY CHOUEST and the SALVO based on orange paint on the SALVO that presumably came from the BETTY CHOUEST. However, Judge Fallon believed the damage was “fairly minor” and “not indicative of a large force.” As the SALVO remained moored, THE LOUISIANA Rule and THE PENNSYLVANIA Rule would have applied, and the fact that the damage was minor did not explain how LaShip could avoid liability for the minor damage, reasoning that the damages to fix the SALVO were “‘minor’ compared to the other ships but not ‘nothing.’” Accordingly, the Fifth Circuit remanded the issue of damages to be awarded for the SALVO.
Eleventh Circuit affirmed decision that salvor had no rights, in rem or in personam, to salvage of the sunken French vessel LA TRINITÉ, as it qualified as a sunken military craft under the Sunken Military Craft Act; Chief Judge Pryor rejected the arguments of amici that the Act is an unconstitutional repudiation of the federal courts’ admiralty and maritime jurisdiction; Global Marine Exploration, Inc. v. Republic of France, No. 24-10148, 2025 U.S. App. LEXIS 21154 (11th Cir. Aug. 19, 2025) (Pryor).
In 1565, a French fleet, led by Captain Jean Ribault on LA TRINITÉ was dispatched to reinforce the French Huguenot settlement of Fort Caroline on the St. Johns River near what is now Jacksonville, Florida. King Phillip II of Spain ordered Pedro Menéndez de Avilés, who founded the nearby Spanish settlement of St. Augustine, to destroy the French settlement. While in pursuit of the Spanish flagship SAN PELAYO, Ribault encountered a hurricane that destroyed his fleet, allowing Menéndez de Avilés to capture and destroy Fort Caroline (ending French settlements in Florida). Global Marine entered into authorization agreements with Florida to conduct salvage activities in Florida coastal waters resulting in discovery of several shipwreck sites. However, Florida was in contact with the Republic of France based on the assumption that one of the sites was LA TRINITÉ. Global Marine brought an in rem action against the shipwreck in the federal court for the Middle District of Florida, and Magistrate Judge Spaulding held that the res was LA TRINITÉ and that it was France’s sovereign property. Global Marine then brought this suit in the Northern District of Florida against France, seeking an in personam lien award based on unjust enrichment, misappropriation of trade secret information, and interference with its rights and relations. France moved to dismiss the claim based on a lack of subject matter jurisdiction under the Foreign Sovereign Immunities Act. Judge Winsor agreed with France that the commercial activity exception in the FSIA did not apply and dismissed the suit for lack of subject matter jurisdiction. Global Marine appealed to the Eleventh Circuit, which disagreed with the interpretation of the commercial activity exception in the FSIA. Writing for the Eleventh Circuit, Judge Lagoa characterized the actions of France as engaging in a marine archaeological recovery project that would identify, evaluate, mobilize, and oversee public and/or private resources and organizations. As those actions (fundraising, contracting with organizations and businesses to carry out excavations, and overseeing the logistics of the project) are commercial and of a type negotiable among private parties, Judge Lagoa considered them to fall within the exception and that the claims asserted in this suit were sufficiently “based upon” the commercial activities that the suit could proceed. See June 2022 Update.
Back in the district court, France moved for summary judgment, arguing that the Sunken Military Craft Act barred the complaint for a salvage award (prohibiting salvage awards with respect to any foreign sunken military craft located in United States waters without the express permission of the foreign state). Global Marine responded that the statute only barred in rem salvage claims, and Global Marine was pursuing an in personam salvage claim. Global Marine also argued that LA TRINITÉ was not a sunken military craft because it was not “on military noncommercial service” when it sank. Judge Winsor agreed with France that the Sunken Military Craft Act covered both in rem and in personam actions and that LA TRINITÉ was a sunken military craft. Accordingly, he granted summary judgment in favor of France. Global Marine appealed to the Eleventh Circuit, and, writing for the court, Chief Judge Pryor agreed that the statute extends both to in rem and in personam actions. Additionally, after an exhaustive history of 16th century storylines on the colonization efforts of France, Spain, Portugal, and the Netherlands and the religious wars as the Protestant Reformation spread from kingdom to kingdom, Chief Judge Pryor agreed that LA TRINITÉ was on military noncommercial service when it sank. Accordingly, he affirmed the summary judgment (also affirming the dismissal of Global Marine’s claims for unjust enrichment, trade-secret misappropriation, and tortious interference). Chief Judge Pryor also filed a concurring opinion to address the argument from amici curiae that the Sunken Military Craft Act, as interpreted by Judge Winsor and the Eleventh Circuit, was “likely unconstitutional as an impermissible repudiation of the federal courts[’] admiralty and maritime jurisdiction.” He addressed the argument in a concurring opinion as the parties did not raise it in the district court or on appeal. Chief Judge Pryor termed the argument “at best, dubious,” and he added that the amici “misunderstand the breadth of congressional power to ‘alter, qualify or supplement’ maritime law and jurisdiction,” noting that the Supreme Court had declared “as settled doctrine” in Southern Pacific Co. v. Jensen that “Congress has paramount power to fix and determine the maritime law which shall prevail throughout the country.” Chief Judge Pryor noted the breadth of Congressional power with respect to military vessels and international relations, reasoning that a sunken military craft “carries enormous significance to a nation.” Chief Judge Pryor reasoned that the case cited by the amici, Panama Railroad Co. v. Johnson, was not applicable because the Sunken Military Craft Act did not remove a maritime subject from admiralty jurisdiction conferred under Article III to the federal courts. Instead, it “supplants general law derived from the ancient law of nations,” creating “a new regime for salvage of a sunken military craft within admiralty jurisdiction.” Congress has the authority to change the substantive maritime law of salvage rights for sunken military craft, and its legislation left Global Marine with no salvage rights.
Eleventh Circuit agreed with the district court that the lack of properly disclosed medical opinion on causation for the passenger’s back injury and surgery required dismissal of all counts in the passenger’s suit against the cruise line, including the vicarious liability claim; Scott v. Carnival Corp., No. 24-11131, 2025 U.S. App. LEXIS 21160 (11th Cir. Aug. 19, 2025) (per curiam).
Alvin Scott, a passenger on the CARNIVAL HORIZON, fell while walking to the dining area on Deck 10 of the vessel. A large amount of water had accumulated on the deck from an overflowing pool, and an employee of the cruise ship directed Scott with an alternative route (that still included walking across the wet pool deck). When he entered the dining area, Scott stepped across a carpeted runner and onto a tile floor where he slipped and fell. Scott brought this suit against the cruise line in federal court in Florida, alleging claims of direct negligence and vicarious liability for allowing the pool to overflow, directing him to walk across a wet area, and failing to cordon off the wet area. The cruise line moved for summary judgment that there was no evidence of a dangerous condition, the condition was open and obvious, there was no evidence of negligent maintenance or notice of the condition, there was no evidence of negligence of a crewmember to impute to the cruise line, and there was no expert evidence for medical causation. The cruise line argued that it had no record of the pool overflowing, but Judge Moore held that Scott’s testimony was sufficient to create a fact dispute as to the dangerous condition unless it was blatantly contradicted by the record, and the absence of a record of a pool overflow was not sufficient to render Scott’s testimony incredible as a matter of law. Scott did not, however, contest the argument that the large accumulation of water was open and obvious. Agreeing with the cruise line that a reasonable person would have observed a large accumulation of water and appreciated the risk of slipping, Judge Moore granted summary judgment on the claim of failure to warn. To support his claim of negligent maintenance, Scott argued that the cruise line’s policies required that areas with a significant accumulation of water should be closed to passengers by a physical barrier. However, Scott failed to show how long the water had been on the deck, so there was no evidence that the cruise line failed to promptly address the issue. The cruise line argued that all of the direct liability claims should be dismissed because Scott did not establish notice to the cruise line. Scott argued that the presence of the crewmember in the area established that the cruise line had actual notice that he was directing the passenger to an area with a tile floor. Judge Moore disagreed, noting that Scott failed to cite authority that actual notice can be established by the knowledge of a crewmember. He added that knowledge of the condition alone is insufficient, and the cruise line must also know the condition is dangerous. Finally, actual or constructive notice was insufficient without evidence that the dangerous condition was detectable with sufficient time to allow for constructive knowledge. Finally, the cruise line argued that Scott could not establish causal connection for the injury to his back, for which he underwent surgery, because he did not properly disclose his retained medical expert or his non-retained treating physicians. Judge Moore agreed and held that all of Scott’s claims should be dismissed, including the vicarious liability claim, because he failed to carry his burden of establishing causation for his claimed injury. See April 2024 Update.
Scott appealed to the Eleventh Circuit, arguing that Judge Moore abused his discretion by finding that Scott’s failure to disclose his experts was neither substantially justified nor harmless under Rule 37(c). The appellate court reviewed the three factors considered in determining whether the court abused its discretion, noting that Judge Moore believed that the importance of the testimony weighed against exclusion because expert opinion was required to establish medical causation. Scott argued that this factor should have been dispositive of the decision, but the Eleventh Circuit stated that the opposite was true—that the first factor was less important than the other two combined. With respect to the second factor, Scott did not offer an explanation on appeal for his failure to disclose the physicians, despite the requirement that he provide a “substantial” justification. Turning to the third factor, Scott argued that the cruise line was not prejudiced by his late disclosures and that the cruise line had engaged in “gamesmanship” by not complaining that the disclosures were inadequate. The court of appeals was “unpersuaded” by Scott’s suggestion that it was opposing counsel’s duty to prosecute his case for him. And the court added that this was not the case where he submitted faulty disclosures for which counsel could have asked for a correction. Scott submitted nothing, and if the cruise line had notified him at the end of the deadline, it would have been too late to correct the failure. The Eleventh Circuit held that Judge Moore did not abuse his discretion in declining to allow Scott’s experts, and, accordingly, he did not err in granting summary judgment for lack of causation.
Life rafts and maritime safety products for vessels and offshore installations fell within the Texas Fair Practices of Equipment Manufacturers, Distributors, Wholesalers, and Dealers Act (obligating suppliers to repurchase unsold inventory when the supplier terminates the dealer agreement); Fire Protection Service, Inc. v. Survitec Survival Products, Inc., No. 24-20405, 2025 U.S. App. LEXIS 21450 (5th Cir. Aug. 21, 2025) (Dennis).
This case has been through a bench trial before a judge who has retired, two opinions of the Fifth Circuit, and an opinion of the Texas Supreme Court. Fire Protection Service became an authorized dealer for life rafts and other maritime safety products of Survitec Survival Products. Survitec manufactures and distributes marine safety products, such as life rafts, that are required by federal law and binding international treaties to be installed on navigable vessels across a wide range of industries, including cruise lines, offshore oil and gas operations, military sealift commands, maritime shipping, merchant marine services, and commercial fishing. After Survitec terminated the dealer agreement, Fire Protection demanded that Survitec repurchase the unsold inventory based on the requirement contained in the Texas Fair Practices of Equipment Manufacturers, Distributors, Wholesalers, and Dealers Act, which obligates suppliers of covered “equipment” to a dealer to repurchase unsold inventory of the covered equipment after the supplier terminates the dealer agreement. The statute includes several enumerated types of equipment, including machinery or equipment used for, or in connection with, “industrial, construction, maintenance, mining, or utility activities or applications.” Fire Protection argued that the life rafts are used in connection with offshore oil drilling, and that oil drilling falls within the statutory coverage for mining or industrial activity. Judge Rosenthal disagreed, reviewing the use of these terms in other statutes and holding that the Texas Legislature has not equated oil drilling with mining. Additionally, Judge Rosenthal held that the life rafts and equipment could not be said to be used for or in connection with mining. She agreed that marine life rafts are present in a variety of industries, including offshore construction and maintenance, offshore drilling, undersea mining, and work on utility lines that are over or under bodies of water. However, she responded: “The fact that marine life rafts are often, even required, to be present when offshore industrial activities, offshore construction, maintenance, mining, or other activities or applications are performed, does not mean that the rafts themselves are used in those activities or applications.” As the dealer agreement was outside the scope of the statute, Judge Rosenthal dismissed the claims of Fire Protection. See August 2023 Update.
Fire Protection appealed to the Fifth Circuit, which concluded that Judge Rosenthal “erred in disregarding the copious authorities establishing that the ordinary meaning of ‘mining’ includes oil and gas exploration and production.” Writing for the court, Judge Dennis added that the life rafts were included in four of the commercial contexts covered by the statute, construction, maintenance, mining, and industrial. As the rafts cleared the low “tangential connection” requirement that they be “used . . . in connection with” the commercial activities, the Fifth Circuit reversed the dismissal of Fire Protection’s claims.
From the federal district courts
Magistrate Judge set reasonable rate for depositions of seamen’s treating doctors at $750 per hour for time spent in the depositions, with the depositions to be taken outside of ordinary hours for seeing patients and with no deposit required; In re M/V AET EXCELLENCE, No. 3:23-cv-167, 2025 U.S. Dist. LEXIS 104835 (S.D. Tex. June 3, 2025) (Edison).
This litigation arises from three limitation actions filed in connection with the collision between the M/V HUNTER T. and the M/V NORTHERN MAGNUM in which two seamen assigned to the AET EXCELLENCE were injured while riding on the HUNTER T. and a separate action in which one of the seamen was also injured while transferring from the M/V EXCALIBUR to the AET INNOVATOR. Limitation actions were filed in federal court in Texas on behalf of the HUNTER T., the NORTHERN MAGNUM, and the AET vessels after suit was filed by seamen Gerald Arukwe and Jose Uresti against the owners/operators of the HUNTER T. and the AET vessels. T&T Offshore, owner of the HUNTER T., filed a third-party complaint and Rule 14(c) tender against the NORTHERN MAGNUM interests in the HUNTER T. limitation action. The pleading sought contribution and indemnity, but it also sought judgment for Arukwe and Uresti directly against the NORTHERN MAGNUM interests. The NORTHERN MAGNUM interests objected, arguing that Rule 14(c) is only applicable when the plaintiffs have asserted an admiralty claim under Rule 9(h), and Arukwe and Uresti brought their claims against T&T Offshore under the Jones Act, demanding a jury trial. Magistrate Judge Edison cited the language of Rule 14(c) that the scope of the Rule applies to a plaintiff who “asserts an admiralty or maritime claim under Rule 9(h). Although Arukwe and Uresti brought a claim in the T&T limitation action for the HUNTER T. (the limitation action can only be brought pursuant to Rule 9(h)), Magistrate Judge Edison reasoned that the seamen/claimants had not designated their claims as brought pursuant to Rule 9(h), had brought Jones Act claims, and had demanded a jury. Therefore, he held that T&T Offshore could not avail itself of Rule 14(c) to make the NORTHERN MAGNUM interests directly liable to the seamen. The NORTHERN MAGNUM interests also asked that T&T Offshore’s claims under Rule 14(a) for contribution and indemnity should be dismissed. Finding no support for dismissal of the third-party claims that were asserted under Rule 14(a), Magistrate Judge Edison declined to recommend dismissal of those claims. There was no objection to the recommendations, and Judge Brown adopted them. See July 2025 Update.
The AET interests sought to depose the seamen’s treating physicians, Dr. Victoria Do and Dr. Rubin Bashir, and a dispute arose over the compensation that AET must pay to the doctors for the time spent in their depositions. Dr. Do, a family medicine doctor who has been practicing since 2004, sought an hourly rate of $2,500. Dr. Bashir, an orthopedist who has been practicing since 2008, sought an hourly rate of $3,500. Both sought deposits ($5,000 and $3,500). The AET interests argued that the requested rates were excessive and that a reasonable rate was $500 per hour. Magistrate Judge Edison noted that Rule 26 provides that the party seeking discovery must pay the expert a reasonable fee for time spent responding to discovery, and he added that it is in the court’s discretion to set the amount that it deems reasonable. Although the doctors argued that the requested fees were a reasonable approximation of the revenue the doctors would forego if they were being deposed instead of seeing patients, Magistrate Judge Edison stated that he had “no intention of forcing these doctors to choose between seeing patients and attending a deposition.” He explained that the lawyers could “arrange their schedules to conduct the depositions early in the morning, late in the afternoon, or on the weekend.” Magistrate Judge Edison added that the depositions could be continued over multiple days in order to allow the doctors to treat their patients during normal business hours. [Counsel for the AET interests stated that he would be happy to schedule the depositions, if convenient to the doctors, “at midnight, on a full moon, in a graveyard,” but Magistrate Judge Edison thought that “might be a tad much”]. As for the reasonable hourly rate, Magistrate Judge Edison held that $750 was the reasonable rate for time spent in the depositions, using his experience as a practicing lawyer and judge. Magistrate Judge Edison declined to order the AET interests to pay a deposit, citing authorities stating that “requiring up-front payments without reference to time actually spent in responding to discovery is contrary to the law.” Thus, the amount owed under Rule 26 becomes due only after the expert sits for his or her deposition.
Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act barred enforcement under the New York Convention of the arbitration clause in a seaman’s employment agreement; Bulic v. Celebrity Cruises, Inc., No. 1:25-cv-21231, 2025 U.S. Dist. LEXIS 122495 (S.D. Fla. June 27, 2025) (Altonaga).
This is the first of two cases in the September 2025 Update reaching the same result under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act. [See Doe v. Celebrity Cruises, Inc., below]. Marina Bulic, a citizen of Serbia, was employed as a revenue and marketing director on the cruise ship CONSTELLATION. She claims that during a crew party on the vessel she consumed alcohol, became impaired, fell asleep in a bar manager’s stateroom, and awoke to find the ship’s restaurant manager engaging in nonconsensual sexual contact with her. The cruise line investigated the incident and reassigned the restaurant manager to another vessel, and Bulic brought this suit against the cruise line in federal court in Florida, alleging claims under the Jones Act and general maritime law (unseaworthiness). The cruise line moved to compel arbitration under the New York Convention (the Convention on the Recognition and Enforcement of Foreign Arbitral Awards) based on the terms of the Sign On Employment Agreement that incorporated the arbitration provisions in a Collective Bargaining Agreement. Bulic argued that the conduct underlying her Jones Act and unseaworthiness claims was a “sexual assault dispute” that was exempt from arbitration under the New York Convention based on the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act. The cruise line answered that the EFAA is inapplicable because it governs only claims brought under statutes that explicitly prohibit sexual assault and sexual harassment, which do not include the Jones Act and general maritime law. Chief Judge Altonaga noted that the EFAA provides that “no predispute arbitration agreement . . . shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.” Thus, a case must (1) be brought under federal law and (2) related to a sexual assault dispute. Chief Judge Altonaga reasoned that the sexual assault prong of the statute contains “no requirement that a plaintiff bring her claim under a law explicitly prohibiting sexual assault.” As Bulic’s suit satisfied both requirements of the EFAA (“she brings her case under federal law – namely, the Jones Act and general maritime law – and she alleges nonconsensual conduct that qualifies as a ‘sexual assault dispute’ as defined by the statute,” Chief Judge Altonaga held that the EFAA barred enforcement of the arbitration provision. Chief Judge Altonaga also rejected the cruise line’s argument that the delegation provision in the arbitration clause required the arbitrator to decide the threshold issues of arbitrability because the EFAA provides that the applicability of the statute is determined by the court, not the arbitrator.
Medical opinions on the cause of an injured passenger’s paraplegia after removal of his cervical collar were not so speculative as to require exclusion, resulting in denial of summary judgment on causation of the paraplegia; life care planner was only allowed to testify about expenses for a one-year period as that was the only life-expectancy stated by the physicians; Smith v. Carnival Corp., No. 1:24-cv-21213, 2025 U.S. Dist. LEXIS 123666 (S.D. Fla. June 30, 2025) (Goodman), 2025 U.S. Dist. LEXIS 128232 (S.D. Fla. July 7, 2025) (Goodman), recommendation adopted, (S.D. Fla, July 23, 2025) (Williams).
James Smith, a passenger on the CARNIVAL GLORY, asserts that he became a paraplegic after the motorized scooter that he rented tipped and fell when he was reversing and turning the scooter to exit in an unusually small and narrow doorway from a restaurant on the vessel. Claiming that the old scooter and doorway and flooring were dangerous, Smith brought this action against the cruise line in federal court in Florida, adding a count in an amended complaint for vicarious liability for negligent design/installation/approval of the surface where Smith was injured. The cruise line moved to dismiss the added vicarious liability claim for negligent design, arguing that it was redundant and duplicative of the complaint’s existing count seeking to recover for direct liability for negligent design and because the new count was improperly alleged. Magistrate Judge Goodman rejected the argument that the vicarious liability count was duplicative, answering that the passenger could plead alternative theories of liability and that the count alleged the employee’s notice even though it asserted that notice was not required for employee negligent acts. Turning to the sufficiency of the allegations for vicarious liability, Magistrate Judge Goodman noted that the complaint alleged that cruise line employees were assigned to design, construct, and/or select materials for the cruise ships; that they worked for departments of the cruise line, including the New Build and Refurbishment Departments; that the employees in those departments created, reviewed, or approved the designs, construction, and selection of materials for the ships; and that the employees custom designed and custom built the CARNIVAL GLORY to their specifications, including the small, narrow, uneven, and lumpy area where Smith was injured. Smith alleged that the employees failed to design/construct the area in compliance with industry standards and, instead, selected and designed materials that were unreasonably dangerous. This was sufficient to plead a claim for vicarious liability, and the fact that Smith also made the superfluous allegation that the employees had notice did not require dismissal. Therefore, Magistrate Judge Goodman recommended that the motion to dismiss be denied. See January 2025 Update.
The cruise line challenged the opinions of three experts designated by Smith, Dr. Nicholas Suite, Dr. Hitesh Raval, and Paul Ramos (a life care planner). Dr. Suite opined that the removal of Smith’s cervical collar directly caused his paraplegia. Dr. Raval opined that the medical care provided to Smith was below the accepted standard of care and that the removal of the collar made Smith’s condition “marginally worse.” Ramos opined on the projected cost of future medical care, but he could not provide a total cost because Smith does not have an expert who can testify about his life expectancy. The cruise line objected to Dr. Suite’s opinion that the removal of the cervical collar caused Smith’s paralysis as unduly speculative because Dr. Suite did not know what happened after the removal of the collar that caused the paralysis. Chief Magistrate Judge Goodman agreed that the inability to state what movement caused the injury undermined and weakened his opinion, but it did not justify excluding the opinion. Similarly, Chief Magistrate Judge Goodman declined to exclude the opinion of Dr. Raval that Smith’s condition worsened after the removal of the collar based on comparison of notes written by different providers at different times. The opinion was “not perfect,” but the lack of perfection was the fodder for cross-examination. Finally, with respect to the opinions on the life care plan, Chief Magistrate Judge Goodman noted that the only testimony as to Smith’s life expectancy was at best one year based on numerous co-morbidities and complications. Therefore, the life care planner was only allowed to testify as to care to be provided for that one-year period.
While the challenge to the experts was pending, the cruise line moved for summary judgment that Smith failed to establish causation with respect to his paralysis. As Chief Magistrate Judge Goodman declined to exclude the testimony of Smith’s experts, there was disputed medical evidence of causation, and, accordingly, Chief Magistrate Judge Goodman declined to recommend that summary judgment be granted. The cruise line did not object, and Judge Williams adopted the recommendation and denied the motion.
Court had admiralty jurisdiction over an insurer’s request for reimbursement of the cost of defending and settling a suit against its insured, the owner of a rented jet ski, for an accident on the Colorado River in Nevada, and the Judge applied Nevada law to permit an equitable reimbursement claim against the Arizona jet ski owner; Admiral Insurance Co. v. Kabul, Inc., No. 2:24-cv-2060, 2025 U.S. Dist. LEXIS 126620 (D. Nev. July 3, 2025) (Navarro), adopting 2025 U.S. Dist. LEXIS 127470 (D. Nev. May 8, 2025) (Couvillier).
This litigation arises from the death of Tammy Lynch, a passenger on a jet ski being operated by Darryl Alexander on the Colorado River in Nevada in the area of Community Park. The jet ski was rented from Kabul, Inc. The jet ski was struck by a watercraft that was operated by Samir Adrian Hernandez. Lynch’s beneficiaries brought suit in federal court in Nevada against Hernandez, Kabul, and others (based on admiralty and diversity jurisdiction), and Kabul filed a claim with its insurer, Admiral Insurance Co. Although Admiral Insurance disputed coverage, it defended Kabul in the suit (under a reservation of rights) and eventually settled the case for $850,000 (after incurring $62,854.42 in attorney fees). Admiral Insurance then brought a suit against Kabul in Nevada federal court (based on admiralty jurisdiction), seeking a declaratory judgment that it had no duty to defend or indemnify Kabul. Kabul asserted a third-party action against its insurance broker, Gregg Eidsness Farm Bureau Financial Services. The court granted summary judgment to Admiral, declaring that Admiral had no duty to defend or indemnify Kabul. Admiral then brought this suit against Kabul in Nevada federal court (based on admiralty jurisdiction), seeking to recover the amount of the settlement and defense costs. After defending the first two suits without asserting any jurisdictional defenses, Kabul now argued that the court lacked admiralty jurisdiction and personal jurisdiction, and that venue was improper. Magistrate Judge Couvillier rejected the personal jurisdiction argument as the third action arose out of Kabul’s forum activities (after all, the insurer’s settlement and defense costs involved the suit against Kabul in the district) and as Kabul acknowledged the court’s personal jurisdiction and availed itself of the jurisdiction by asserting the third-party claim against the broker. Magistrate Judge Couvillier then considered whether the court had admiralty jurisdiction over the insurer’s suit for reimbursement against its insured. Noting that “contracts related to water vessels or to commerce on navigable waters are subject to maritime jurisdiction,” Magistrate Judge Couvillier explained that the policy had an endorsement for “Boats” and provided coverage for watercraft owned, used by, or rented by Kabul, including jet ski rentals. As the policy concerned watercraft used in commerce on navigable waters, and as the claims arose from the policy, Magistrate Judge Couvillier recommended that there was admiralty jurisdiction (he also recommended that venue was proper as the accident and underlying suit were in Nevada). Magistrate Judge Couvillier then addressed the motion to dismiss the equitable claims brought by the insurer to support its reimbursement request—unjust enrichment, equitable estoppel, and equitable subrogation. Kabul argued that the equitable claims were barred under Arizona law by the existence of the policy, noting that Kabul is an Arizona citizen. Admiral argued that Nevada had the greatest interest in the resolution of the issues, reasoning that the claims arose from the judgment Admiral obtained in the declaratory action occurring in Nevada, which declared that Admiral did not have a duty to defend or indemnify Kabul in a lawsuit filed in Nevada arising from an incident that occurred in Nevada. Magistrate Judge Couvillier explained that a federal court sitting in admiralty must apply maritime choice-of-law rules, determining which state has the greatest interest in the resolution of the issues. He concluded that Nevada had the greatest interest as it was the place where the benefit/enrichment was conferred by Admiral and received by Kabul (payment of defense costs and the settlement). Finding that the equitable claims were not foreclosed by the existence of the policy under Nevada law, were not barred for failure to assert them in the prior declaratory judgment action, and were properly founded on the reservation letter, Magistrate Judge Couvillier declined to recommend dismissal of the suit. Kabul objected to the recommendation, but Judge Navarro agreed with Magistrate Judge Couvillier’s recommendations and adopted them in full.
Judge stayed vessel owner’s suit in Texas seeking to recover for contaminated bunkers based on New York arbitration clause in terms incorporated into letter agreement, rejecting application of the Texas forum-selection clause in terms incorporated into subsequently issued Sales Order Confirmations; CMA CGM, S.A. v. GCC Supply & Trading L.L.C., No. 4:25-cv-1320, 2025 U.S. Dist. LEXIS 126785 (S.D. Tex. July 3, 2025) (Lake).
CMA CGM, a French shipowner and charterer, began exchanging emails with GCC Supply and Trading for the purchase of marine fuel in January of 2022. Eventually, in March of 2023, CMA agreed to GCC’s amended letter agreement, replacing the prior provision with the following: “GOVERNING LAW AND JURISDICTION – as set forth in the Bunker Terms 2018, U.S. General Maritime Law/New York law, New York SMA [Society of Maritime Arbitrators] arbitration.” GCC then sent to CMA Sales Order Confirmations for specific fuel deliveries stating that the deliveries were subject to the GCC Supply & Trading LLC’s Terms and Conditions for the Sale of Marine Bunkers” (containing a forum-selection clause for federal court in Harris County, Texas). It was not until June 2023 that CMA sent GCC a complete version of the BIMCO Bunker Terms 2018 (with the full arbitration provision). Asserting that GCC delivered contaminated fuel to its vessels, CMA brought this suit in federal court in Texas against GCC, seeking to recover on theories of breach of contract, breach of warranties, negligence, and product liability. GCC moved to compel arbitration, based on the New York arbitration provision in the BIMCO Bunker Terms 2018 and letter agreement, and CMA argued that the Texas suit was filed in the designated forum in the GCC Terms and Conditions under which the deliveries were completed. CMA asserted that the transactions were subject to the GCC Terms because the Sales Order Confirmations included different terms that were accepted by delivery and receipt of the bunkers. Judge Lake disagreed. He held that the letter agreement incorporating the BIMCO Bunker Terms 2018 (with the arbitration provision) constituted the entire agreement of the parties. The agreement stated that any other set of terms from confirmations or communications with respect to the sales of bunkers would not be incorporated. Although CMA argued that the Texas version of the UCC allowed additional terms to be added to the agreement, Judge Lake answered that additional terms may not materially alter the agreement, and the additional terms would do just that. Accordingly, Judge Lake ordered the case stayed pending arbitration.
Passenger’s failure to correct pleading deficiency of comingling theories into a single negligence count resulted in dismissal of her amended complaint with prejudice; White v. Carnival Corp., No. 1:25-cv-20925, 2025 U.S. Dist. LEXIS 128058 (S.D. Fla. July 7, 2025) (Bloom).
Teressa White, a passenger on the CARNIVAL CONQUEST, was walking with food in her hand when she slipped and fell on a wet and slippery floor tile near the food concession and ingress/egress door on the Lido Deck of the vessel. White brought this suit in Florida federal court, pleading a single negligence count, asserting that the wet tile floor was caused by other passengers walking from the Lido Deck pool area. She asserted that the cruise line should have known that the high traffic would cause the floor to become wet and slippery. Her negligence count alleged that the cruise line breached its duty of care by failing to maintain the premises in a reasonably safe condition and failing to warn her of the slippery condition. The cruise line moved to dismiss the complaint for comingling distinct causes of action into a single count and for failing to adequately allege notice to the cruise line. The cruise line added that the dismissal should be with prejudice because White had been given an opportunity to amend her complaint to cure deficiencies outlined in the cruise line’s prior motion to dismiss, which included the comingling of theories. As White’s amended complaint continued to comingle theories into a single count, Judge Bloom dismissed the complaint with prejudice.
Bank was allowed (in its in rem action against vessels to foreclose on a ship mortgages) to obtain a deficiency judgment after the vessels had been sold; Century Bank v. M/V SUMMER 69, No. 0:23-cv-61616, 2025 U.S. Dist. LEXIS 128060 (S.D. Fla. July 7, 2025) (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 mortgagor, Biology Research, LLC. 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.
Salvor’s fraud claim under state law against state official for false statement made to stop the salvor from completing salvage work on vessels was barred by limitations and failure to provide notice under the state tort claims act; James v. Taylor, No. 3:24-cv-2012, 2025 U.S. Dist. LEXIS 148716 (D. Ore. July 7, 2025) (You), recommendation adopted, 2025 U.S. Dist. LEXIS 156447 (D. Ore. Aug. 13, 2025) (Simon).
John F. James, Jr. claims that he provided salvage work on two vessels that sank in the Columbia River. He asserts that, after reaching a level of success, James Taylor, an employee of the Oregon Department of State Lands, instructed the River Patrol to stop James’ operations so that James could obtain a permit that was not required. James stopped and unsuccessfully tried to obtain the permit; another company took over the salvage operation; and his equipment was stolen. James brought this action in Florida federal court against Taylor, seeking to recover for the value of his equipment and for the lost business opportunity. Magistrate Judge You recommended that the court sua sponte dismiss the case for failure to state a claim, reasoning that James did not state a claim for salvage or “a claim under an admiralty rule of the United Kingdom,” but Judge Simon believed that James sufficiently stated a claim for common-law fraud under Oregon law. Judge Simon reasoned that James had pleaded the elements that the defendant made a material misrepresentation that was false, with knowledge that the representation was false, intending the plaintiff to rely on the misrepresentation with resulting damage. Judge Simon summarized: “Plaintiff’s allegations that Defendant stated that Plaintiff needed to get a short-term permit ‘knowing’ it was false and done for personal gain and to stop Plaintiff from getting the salvage work, and that Plaintiff reasonably relied on that statement, attempted to get the permit, and then suffered damages, suffices to allege a common law claim of fraud.” See July 2025 Update.
Taylor then moved to dismiss the fraud claim on the ground that it was barred by the two-year statute of limitations and by the notice requirements under Oregon law. Magistrate Judge You pointed out that James knew of the facts underlying his fraud claim more than two years before filing this suit and had filed a qui tam action that was dismissed without prejudice. That suit did not toll the prescriptive period, even though it was dismissed without prejudice. And, even if equitable tolling extended the time to file suit, James still had nine days to file suit after the dismissal of the qui tam action. Therefore, the fraud claim was time barred. Additionally, Magistrate Judge You agreed with Taylor that James failed to give notice within 180 days of accrual of his claim in accordance with the Oregon Tort Claims Act. Consequently, that failure was another reason to dismiss the suit.
Taylor appealed the recommendation to Judge Simon, arguing that his claim was not one for common-law fraud but arose under salvage law. The problem with that objection was that the court previously held that James did not state a claim for salvage, and the only claim that remained was fraud. Judge Simon agreed that James’ claim was barred by the statute of limitations and failure to provide the required notice, and he ordered dismissal of the suit with prejudice.
Towing company that provided tugs to tow barges under a contract with the charterer of the barges was entitled to a lien on the barges for the towage (but not for fuel provided to the tugs); Trailer Bridge, Inc. v. Louisiana International Marine, LLC, No. 22-cv-5358, 2025 U.S. Dist. LEXIS 128799 (E.D. La. July 8, 2025) (Brown).
Trailer Bridge, owner of the deck barges, ATLANTA BRIDGE and MEMPHIS BRIDGE, time chartered the barges to Work Cat Florida using a BIMCO Standard Barge Charter Party Agreement with a no-lien and indemnity provision. Work Cat Florida entered into two BIMCO Supplytime 2005 time charters with Louisiana International Marine for the use of the LA COMMANDER and the LA INVADER to tow the ATLANTA BRIDGE and the MEMPHIS BRIDGE. Work Cat did not pay for the towage and filed for bankruptcy. Louisiana International Marine filed a claim for $1,364,214.17 in the bankruptcy, and it also filed lien claims with the National Vessel Documentation Center against the ATLANTA BRIDGE and the MEMPHIS BRIDGE for necessaries for towage. When Trailer Bridge sought to sell the work barges, Louisiana International Marine sent a demand to the purchaser, which sought defense and indemnity from Trailer Bridge. Trailer Bridge then brought this action in federal court in Louisiana against Louisiana International Marine, seeking a declaratory judgment that the liens asserted by Louisiana International Marine were invalid, and Louisiana International Marine filed a counterclaim seeking recognition of the liens. Before addressing the arguments on the merits, Chief Judge Brown initially declined to hold that Trailer Bridge was collaterally estopped (issue preclusion) from contesting the validity of the liens because it had repeatedly acknowledged the validity of the liens in the Work Cat Florida bankruptcy proceeding. She cited the documents from the bankruptcy proceeding reflecting that the liens were referenced, but their validity was not litigated. Turning to the validity of the liens under the Commercial Instruments and Maritime Liens Act, Chief Judge Brown easily concluded that towage services are necessaries, but Trailer Bridge argued that the towage services were not provided “for” the barges and that the barges did not benefit from the towage services, adding that “it was not necessary for the barges to be towed to effectuate their function – to stay afloat.” Chief Judge Brown disagreed, reasoning that the barges could not have provided their services without the towage provided by the tugs. Chief Judge Brown declined to extend the lien to the fuel that was provided to the tugs for the towage. The fuel was necessary to keep the tugs going, but it was not furnished to the barges, which do not require fuel. Therefore, Louisiana International Marine did not have a lien for the fuel costs. As Chief Judge Brown found that Louisiana International Marine furnished towage services to the barges that were necessaries, there was a presumption that it relied on the credit of the barges. However, Trailer Bridge presented the testimony of the corporate representative for Louisiana International Marine that it did not extend credit to the barges and that the invoices were addressed to Work Cat Florida. Chief Judge Brown did not find the invoicing to be dispositive as it only showed that Louisiana International Marine relied first on the charterer, not that it did not intend to rely on the credit of the barges. Although the Fifth Circuit considers corporate testimony on the reliance issue to be almost conclusive, Chief Judge Brown noted that it was unclear from the testimony whether the corporate representative understood the question about working on the credit of the barges and that he intended to forego the lien. Therefore, Chief Judge Brown found fact issues remained that needed to be resolved. See July 2024 Update.
Chief Judge Brown then conducted a bench trial, and she found that Trailer Bridge had not established that Louisiana International Marine relied solely on the credit of Work Cat Florida, accepting the testimony of the representative for Louisiana International Marine. Therefore, she held that Louisiana International Marine was entitled to a maritime lien against the ATLANTA BRIDGE and the MEMPHIS BRIDGE, and she awarded damages to Louisiana International Marine for the towage services (but she declined to award damages for the fuel oil/lube necessary for the tugs). Chief Judge Brown then considered whether the lien would extend to the stand-by time for the tugs, and she reasoned that during the stand-by time, the barges were kept out of danger and that the tugs could not have performed other work. Accordingly, she held that Louisiana International Marine was entitled to judgment for the stand-by time. Trailer Bridge, on behalf of the ATLANTA BRIDGE and the MEMPHIS BRIDGE, filed a notice of appeal to the Fifth Circuit on May 28, 2025. See July 2025 Update.
Louisiana International Marine then moved to amend the judgment to award it attorney fees (together with a motion seeking an award of fees in the amount of $186,717.50 (based on an hourly rate of $300 to $350 for lead counsel with over 35 years of legal experience and an hourly rate of $225 for associates). Judge Brown began by noting that the in rem claim against the vessels should not include attorney fees, reasoning that a suit to enforce a maritime lien is “limited to the value of the lien itself,” and attorney fees are “beyond the scope of necessaries because they are not necessary for the ship to carry on its normal functions and not something essential to the vessel’s operations.” However, Louisiana International Marine argued that the judgment should include an award of fees for its in personam claim against Trailer Bridge. This case was brought by the vessel claimants seeking a declaratory judgment that the liens were invalid, and Louisiana International Marine filed a counterclaim seeking recognition of the liens. Judge Brown reasoned that in personam liability did not attach merely because the court recognized the maritime liens. Therefore, she declined to issue an in personam award of attorney fees, stating that it was equitable that each party bear its own attorney fees. Louisiana International Marine filed a cross-appeal on July 30, 2025, and Judge Brown stayed execution of the judgment in the amount of $1,493,564.60, pending appeal, based on the escrow account ($1,350,000) previously deposited by Trailer Bridge on behalf of the vessels.
Even though owner of fishing boat could only obtain seasonal visas by lottery that did not provide visas every year, injured foreign deckhand could seek future economic losses that were not limited to what he could earn in Mexico because he could have sought work for other companies that were allotted visas through the lottery; Espinoza v. Westbank Fishing, LLC, No. 2:23-cv-6204, 2025 U.S. Dist. LEXIS 128814 (E.D. La. July 8, 2025) (Ashe).
Juan Carlos Machado Espinoza, a citizen of Mexico, was employed as a deckhand on Westbank Fishing’s vessel MARY JUDITH. While fishing for menhaden off the coast of Louisiana, Espinoza was working as a seine (pole) setter on one of the purse boats, moving the stern pole between the three notches while hauling in a catch of fish. He was injured when the pole came out of its socket and struck him in the head. Espinoza brought this suit against Westbank Fishing in federal court in Louisiana, seeking to recover for negligence under the Jones Act and unseaworthiness under the general maritime law. He sought recovery for loss of earning capacity, fringe benefits, and found. Espinoza hired AsherMeyers, LLC, a forensic accounting firm, to calculate his economic losses, and Asher and Meyers issued a joint report opining that, based on Espinoza’s work-life expectancy of 7.5 years and his pre-incident annual earning capacity of $29,105, his loss of economic capacity totals $274,082 (including lost wages, fringe benefits, and found). Westbank Fishing moved to exclude (or limit) the opinions as speculative because they did not account for the fact that Espinoza was a seasonal worker who had an H-2B visa for the 2023 fishing season. Westbank Fishing explained that the H-2B visa program is based on a lottery system, and Westbank Fishing was not allotted any visas for the 2020, 2021, and 2025 fishing seasons. Therefore, Westbank Fishing could not hire Espinoza for any seasons in which it was not allotted visas, and Espinoza’s wage-earning capacity should be calculated using the wages he would receive in Mexico for similar work. Judge Ashe disagreed, noting that Espinoza had legally worked in the United States on an H-2B visa in other years for other employers. He stated: “Just because Westbank may not have been able to employee Espinoza in a particular year does not mean that some other fishing outfit would not have done so.” Judge Ashe considered the opinions to be sufficiently relevant and reliable, and Westbank Fishing could address the factual assumptions on the availability of visas and work through cross-examination and countervailing expert testimony.
Act of state doctrine did not bar captain’s claims under the Jones Act and general maritime law against the owner and operator of the vessel when he was imprisoned in Indonesia after anchoring the vessel off the coast of Indonesia; Ledoux v. SubCom, LLC, No. 1:24-cv-2168, 2025 U.S. Dist. LEXIS 129748 (D. Md. July 9, 2025) (Bennett).
David A. Ledoux was employed by the owners and operators of the cable-laying vessel M/V RELIANCE as the captain. He asserts that, at the instruction of the agent for the vessel, Ben Line Agencies—Singapore, he anchored the vessel 51 nautical miles off the coast of Indonesia. On October 2, 2021, armed Indonesian Navy personnel ordered him to anchor the vessel in Batam Harbor, Indonesia so that they could inspect the vessel for seaworthiness. After anch0oring the vessel in Batam Harbor, Captain Ledoux was ordered ashore and arrested for illegal anchoring and violating the United Nations Convention on the Law of the Sea. He spent 21 days in an Indonesian jail in abysmal conditions, suffering physical consequences and post-traumatic stress disorder. Complaining that he was not told by the vessel owner and operator that they had been warned by their P&I Clubs about the Indonesian Navy unlawfully detaining vessels and seamen off the coast of Indonesia, Ledoux brought this suit in federal court in Maryland against the vessel owner and operator under the Jones Act and general maritime law. The defendants moved to dismiss the complaint, arguing that the claims are barred by the act of state doctrine. The defendants asserted that they only had a duty to warn of the risk of detention if Indonesian officials were invalidly detaining vessels and that they did not cause his injuries in Indonesian custody. Ledoux moved for leave to amend his claim, and the defendants again moved to dismiss based on the act of state doctrine. Judge Bennett first considered the count for Jones Act negligence, pleading that the defendants negligently directed him to anchor the vessel in an area with a known risk of detentions and failed to warn him of the risk after they were made aware by the P&I Clubs. This was not a case in which the government was sued or in which the validity of the governmental action was at issue. As the issue was whether the defendants acted negligently by instructing him to anchor at the location and failed to warn him, Judge Bennett held that the act of state doctrine had no application. Similarly, the claim that the vessel was unseaworthy because the vessel lacked procedures to advise seamen of warnings from the Clubs and the incompetence of its steamship agent were distinct from the acts of the Indonesian government and did not implicate any judgment on the validity of its acts (Judge Bennett gave similar treatment to the count for general maritime negligence). Accordingly, Judge Bennett denied the motion to dismiss and granted leave to file the amended complaint.
Efforts to refinance the debt on the vessel and damage sustained by the vessel in custodia legis were not excuses to delay granting summary judgment to the mortgagee or the judicial sale of the vessel; AgWest Farm Credit, PCA v. NOVARUPTA, No. 3:24-cv-262, 2025 U.S. Dist. LEXIS 129890 (D. Alaska July 9, 2025) (Holland).
Brad T. Angasan and Ronalda Angasan obtained a loan from AgWest Farm Credit to finance the construction of the F/V NOVARUPTA. Ultimately, the Angasans borrowed $421,325.86 and executed a Preferred Mortgage on the vessel. The Angasans defaulted on the loan, and AgWest brought this action against the vessel, in rem, and the Angasans, in personam. The vessel was arrested, and AgWest moved for summary judgment. The Angasans responded that the court should stay its ruling on the motion for 30 days to permit completion of vessel refinancing and to allow the Angasans to assess damages that occurred to the vessel during its custody. Judge Holland disagreed, explaining that the Angasans did not offer a persuasive reason why the court should wait for the refinancing effort. He added that, as a practical matter, it would take more than 30 days for the Marshal to schedule the foreclosure sale. With respect to the damage suffered by the vessel when it fell from the blocking that held the vessel in storage, Judge Holland questioned how that was relevant to the amount of debt owed by the Angasans, stating that the fact that the vessel suffered some damage “does not give rise to any legal right on the part of the defendants for a stay of these proceedings.” As the amount of the debt was established, Judge Holland granted summary judgment to AgWest and ordered that AgWest seek an order for the sale of the vessel.
Seaman’s liability expert was entitled to rely on non-binding Maritime Labour Convention and International Labour Organization/IMO guidelines for his opinions with respect to the seaman’s injury, abandonment, and termination in Guyana, but vilifying characterizations and opinions without factual support were excluded; Rak v. C-Innovation, L.L.C., No. 2:23-cv-619, 2025 U.S. Dist. LEXIS 130815 (E.D. La. July 10, 2025) (Morgan).
Kyle Rak was employed as a pilot technician of remotely operated vehicle systems by C-Innovation. He had just finished a hitch on the OSV ISLAND PERFORMER, a vessel owned by Island Ventures, which was located in Guyana. Rak was injured in an incident that occurred at the Sleepin Hotel and Casino in Georgetown, Guyana (his superintendent suddenly, and without provocation, shoved him to the ground). Rak claims that he was abandoned in Guyana and his employment was terminated. He brought this suit in federal court in Louisiana against C-Innovation and Island Ventures, alleging an injury claim as a Jones Act seaman together with a claim for retaliatory/wrongful discharge. The defendants moved for summary judgment that Rak was not a seaman, and the parties did not dispute that Rak satisfied the requirements that his duties contribute to the function or mission of the vessel and that his connection to a vessel or fleet of vessels was substantial in duration. Judge Morgan applied the Sanchez factors to determine whether Rak’s connection was substantial in nature and noted that the defendants did not dispute that the work Rak performed was sea-based. The defendants contested the other two factors, whether the worker owed his allegiance to the vessel or a shoreside employer and whether the worker’s assignments were limited to performance of discrete tasks after which his connection to the vessel ended. Finding that the facts in this case were similar to those addressed by the Fifth Circuit in its first Santee opinion (see April 2024 Update), Judge Morgan held that Rak was not a seaman and dismissed all of his claims. See June 2024 Update.
Four days after Judge Morgan’s decision, the panel of the Fifth Circuit in Santee granted rehearing and withdrew the opinion on which Judge Morgan based her grant of summary judgment. Rak filed a motion for reconsideration, and Judge Morgan believed that the second decision in Santee (see September 2024 Update) was an intervening change in controlling law that warranted reconsideration of her prior decision granting summary judgment to Rak. Applying the second Santee decision, Judge Morgan held that there were fact issues on Rak’s status as a seaman, and she vacated her prior grant of summary judgment. See October 2024 Update.
Rak engaged Joseph R. Bridges as an expert to testify about the unique standards and customs that apply to maritime workers overseas, including the standards and customs against overseas abandonment of seafarers. The defendants moved to exclude his opinions, and Judge Morgan excluded six of his opinions on the ground that the descriptions of conduct as dishonest, callous, unprofessional, and lacking in integrity “have no place in any expert opinion” because they are overly prejudicial and lack probative value. The defendants argued that opinions based on the Maritime Labour Convention and International Labour Organization/IMO guidelines should be excluded because these standards and regulations are inapplicable. Judge Morgan answered that these organizations are well-respected in the maritime community, and she allowed Bridges to offer expert testimony as to industry standards and norms based on his experience and these sources. The weight of the standards from these organizations is the subject of cross-examination. The defendants objected to 7 opinions with respect to the conduct of the defendants because Bridges did not provide the facts or data on which he based the statements. As he did not disclose the facts or data and the exhibits he used, Judge Morgan excluded these opinions.
Some of the claims of an injured cruise ship passenger against the operator of a waterpark in The Bahamas fell within the admiralty jurisdiction of the court and provided the basis for a Rule B attachment action against the operator in Florida federal court; Aragon v. NCL Bahamas Ltd., No. 1:24-cv-20670, 2025 U.S. Dist. LEXIS 132324 (S.D. Fla. July 10, 2024) (Louis), recommendation adopted, 2025 U.S. Dist. LEXIS 151168 (S.D. Fla. Aug. 6, 2025) (Gayles).
Rafael Aragon, a passenger on the NORWEGIAN SKY, purchased a ticket for the Baha Bay Waterpark excursion at the shore excursion desk on the ship. He was injured on the Thunderball ride at the waterpark in The Bahamas, and he brought this suit in Florida federal court against the cruise line and the operator of the waterpark, CTF BM Operations Ltd. Aragon brought a claim for a Rule B garnishment with respect to CTF, arguing that it is not present in the district but has property within the district. The garnishees and CTF moved to vacate the garnishment and to dismiss the suit for lack of subject matter jurisdiction, lack of personal jurisdiction, and for forum non conveniens. Magistrate Judge Louis began by considering whether there is admiralty jurisdiction over the claims asserted in the complaint. She noted that four counts involved the failure to safely operate/maintain the Thunderball ride, located on the land at the waterpark. As the injuries occurred on the land and were not caused by a vessel on navigable waters, Magistrate Judge Louis concluded that the court lacked admiralty jurisdiction over the counts. Magistrate Judge Louis then addressed the counts asserting misleading advertising, negligent representation, and failure to warn, and she reasoned that, in determining locality, the tort occurs where the alleged negligence took effect. As the alleged negligence occurred when Aragon purchased his ticket for the excursion on the vessel, she believed that the locality test was satisfied. Turning to the connection test, Magistrate Judge Louis rejected the characterization that the activity giving rise to the injury was the operation of a waterpark. She concluded that the proper characterization of the activity was the promotion and sale of the excursion during the cruise, which occurred on navigable waters and had the potential to disrupt maritime commerce. As there was maritime jurisdiction over some of the counts, Magistrate Judge Louis found the prerequisites for Rule B to be satisfied. She also rejected the argument that there could be no garnishment because there is no in personam jurisdiction over CTF: “The fact that CTF is not found in this District is what enables the Rule B proceeding.” Finally, Magistrate Judge Louis addressed CTF’s argument that the case should be dismissed based on forum non conveniens because The Bahamas is a more convenient forum. As Aragon and his treating physicians are located in Florida, Magistrate Judge Louis did not believe that the presumption in favor of his choice of venue was outweighed. Accordingly, she recommended that the motion be denied. CTF objected to the recommendations, but Judge Gayles agreed with the “well-reasoned analysis” of Magistrate Judge Louis and adopted her recommendations.
Passenger improperly commingled theories into a single count and was required to plead notice of the cruise line because she asserted claims of direct liability; Veloz v. Carnival Corp., No. 1:25-cv-21716, 2025 U.S. Dist. LEXIS 132332 (S.D. Fla. July 11, 2025) (Moore).
Daelynne Veloz, a passenger on the CARNIVAL MAGIC, slipped and fell on wine that another passenger spilled at the nightclub on the vessel. Veloz brought this suit against the cruise line in Florida federal court, asserting that the cruise line was negligent for failing to have an anti-slip mat or warning. The cruise line moved to dismiss the complaint for comingling all of the negligence theories into one count and for failing to adequately plead notice. Judge Moore agreed and dismissed the complaint without prejudice. He explained that Veloz had alleged negligence in a single count for failing to inspect and failing to maintain the area, failing to warn, failing to train and instruct employees, failing to develop and use proper safety procedures, and negligently designing the area. He reasoned that each distinct theory must be asserted independently and with corresponding factual allegations to support it. As Veloz would have to amend her complaint, Judge Moore also addressed the adequacy of notice. Veloz argued that she did not have to allege notice because she claimed that the cruise line created, participated in, or approved the design of the dangerous condition. Judge Moore agreed that notice to the shipowner is not required when the passenger is seeking to hold the cruise line vicariously liable for the negligence of its crew. However, Veloz “confusingly lumps various theories of liability into the single count that is labeled as a direct liability negligence claim.” As such, she was required to establish actual or constructive notice of the cruise line of the risk-creating condition.
Judge declined to enjoin continued streaming of TV show Below Deck in suit by cast member under the Jones Act, maritime law, and Civil Rights Act, claiming he was discriminated against based on race and sex and forced into a romantic story line with alcohol-induced consent; Kotze v. NBCUniversal Media, LLC, No. 1:25-cv-4703, 2025 U.S. Dist. LEXIS 132861, 152717 (S.D.N.Y. July 14, Aug. 6, 2025) (Vargas).
Emile Kotze appeared in Season 3 of the television show Below Deck. He claims that he was sexually harassed, manipulated, racially harassed, and subjected to degrading treatment and unsafe working conditions as a deckhand on the 161-foot yacht STAY SALTY, which was named the EROS for the filming of the show. He brought this suit in federal court in New York against NBCUniversal Media and others, alleging that the defendants discriminated against him based on his race and sex in violation of Title VII of the Civil Rights Act of 1964, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, the Jones Act, and general maritime law (unseaworthiness). Kotze’s pro se complaint contained few factual allegations, but he submitted a document titled “Emile Kotze’s Legal Case Against NBC Universal: An unassailable Claim – Evidence Explained,” that Judge Vargas considered as a supplement to his complaint. Kotze asserts that he was induced to participate in the series under the false pretense that it was a commentary about yachting life. He alleges that he was forced into a romantic storyline with another cast member “with alcohol encouraged to impair consent.” He states that footage was manipulated “so as to falsely portray him as immature and unprofessional,” and he was subject to “discrimination as an Afrikaner.” Kotze requested the court issue a temporary restraining order, enjoining the defendants from “airing, streaming, promoting, or distributing any content from Below Deck Season 3 in which [he] appears. Judge Vargas declined to issue the TRO, noting that he could not show that he would suffer irreparable harm without the relief. She explained that Season 3 of the show first aired ten years ago in 2015, and any harm to his reputation from the airing of the show “has already long since occurred.” She added: “Stopping the future airing of Below Deck will not put that genie back in the bottle.” Moreover, Juge Vargas noted that the First Amendment does not generally allow prior restraint of speech with the remedy being damages for the defamation. Kotze then repackaged the same arguments in a motion for reconsideration, emphasizing that his likeness and storyline continued to stream in 2025, causing him “renewed reputational harm, retraumatization and emotional distress.” As he did not cite any new basis to support reconsideration, Judge Vargas denied the motion.
Judge allowed counterclaim (seeking declaratory relief on the issue of whether the defendants owed maintenance and cure) in response to the suit by a participant in a yacht regatta against the owner and operator of a sailing boat seeking to recover under the Jones Act and general maritime law (including maintenance and cure); Whalen v. Gleam, LLC, Nos. 1:24-cv-347, 1:24-cv-523, 2025 U.S. Dist. LEXIS 133216 (D.R.I. July 14, 2025) (McElroy).
Sims Whalen claims that he suffered a traumatic brain injury while aboard the sailing yacht GLEAM. Whalen and several of his college sailing teammates traveled to Newport, Rhode Island to participate in the Newport Classic Yacht Regatta. While Whalen was assisting the crew with trimming the mainsheet, the boom struck him, and he fell to the deck. Whalen did not receive medical care on the yacht or when he returned to shore. However, on his flight home, he began suffering concussion symptoms and sought medical treatment. He later brought this suit in Rhode Island federal court against Gleam, LLC, owner of the vessel, Bristol Yacht Charters, charterer and disponent owner of the vessel, Lenmarine, an operator/manager of the vessel, and Andrew Tyska, owner of Gleam, LLC. He brought a Jones Act claim under the court’s federal question jurisdiction and claims for maintenance and cure and unseaworthiness under the court’s admiralty jurisdiction. Gleam and Bristol Yacht Charters counterclaimed, seeking a declaratory judgment that they did not owe maintenance and cure because Whalen was a passenger and not a seaman. Whalen objected to the counterclaim, but Judge McElroy held that the defendants had standing to argue that Whalen was not a seaman or an employee, and they did not owe him maintenance and cure. Whalen argued that the counterclaim improperly undermined his right to a jury trial on the maintenance and cure claim that was joined with the Jones Act claim. Judge McElroy did not believe that Whalen’s argument supported dismissal of the counterclaim. Although Whalen was entitled to a jury trial on the maintenance and cure claim, the defendants were entitled to challenge his status as a seaman ahead of trial, either through a counterclaim for declaratory relief or by a dispositive motion (they were entitled to clarify Whalen’s status before undergoing extensive discovery and trial preparation). Accordingly, Judge McElroy saw no reason to dismiss the counterclaim “because a declaratory judgment clarifying whether Mr. Whalen is owed maintenance and cure could help resolve which defendants, if any, owe him this exclusive remedy.”
Conclusory allegations without factual support were insufficient to establish notice of the dangerous condition in passenger’s suit based on tripping and falling over a loose floor tile on the vessel; Ison v. Carnival Corp., No. 1:24-cv-22260, 2025 U.S. Dist. LEXIS 134307 (S.D. Fla. July 15, 2025) (Gayles).
Betsy Ison, a passenger on the M/S LUMINOSA, tripped and fell over a loose tile on the ship’s second deck near the Piano 88 Bar. She brought this suit in Florida federal court against the cruise line, alleging claims for negligent maintenance and negligent failure to warn. The cruise line moved to dismiss the complaint for failing to sufficiently allege notice, and Ison cited her pleading that the tile was in a high traffic area, regularly used as a walkway, and that the loose tile had existed for a long enough period that the cruise line should have detected it and corrected it. She also asserted that the condition had already caused other passengers to fall. Judge Gayles answered that the allegations were insufficient, stating that there were no allegations to estimate the length of time the tile was loose or to identify the other passengers who tripped and fell in similar circumstances. As the allegations were “conclusory and devoid of any detail to show how Defendant knew or should have known about the danger,” Judge Gayles dismissed the complaint without prejudice for failing to sufficiently allege notice.
Insurer was responsible for damage to vessel despite breach of the captain and crew warranties because the Florida Anti-Technical Statute required evidence of causation, but the insurer was not liable for bad faith because the application of the anti-technical statute was an unresolved issue at the time of the denial; Ocean Reef Charters, LLC v. Travelers Property Casualty Co. of America, No. 9:23-cv-81222, 2025 U.S. Dist. LEXIS 135617 (S.D. Fla. July 16, 2025) (Reinhart).
Travelers insured the M/Y MY LADY, a 92-foot Hatteras yacht. The policy contained two express warranties, a captain warranty that required the owner to employ a full-time professional captain approved by Travelers and a crew warranty that required the owner to have one full-time or part-time professional crew member aboard the vessel. The owner of the vessel, Ocean Reef Charters, had neither a captain nor crew member when Hurricane Irma approached Florida in September 2017. The operator could not engage the former captain and did his best to secure the yacht. The extra mooring lines he added were ineffective when a dock piling to which the port bow line was attached gave way as Irma struck. The yacht was holed and sank. Travelers brought this suit seeking a declaratory judgment that the breaches of the captain and crew warranties voided coverage under the policy, and the owner responded by arguing that the breaches were unrelated to the loss and that the policy was not voided because of the application of the Florida Anti-Technical Statute (providing that breaches of warranty do not void the policy unless they increased the hazard by any means within the control of the insured). The owner asserted that it was the unforeseeable failure of the dock piling that caused the loss. The arguments presented the question, under Wilburn Boat, whether there was an entrenched rule of admiralty that express warranties in marine insurance policies must be strictly construed in the absence of a limiting provision in the policy. The district court held that there was such an entrenched rule and ruled that there was no coverage. The Eleventh Circuit then re-examined Wilburn Boat, noting how it has sown confusion and troubled maritime lawyers for more than 60 years. This was, in part, because the analysis in Wilburn Boat “rests on a flawed premise” that there was no established maritime rule requiring strict fulfillment of warranties in marine insurance policies when the Supreme Court and all major admiralty appellate courts in the United States had long accepted the literal performance rule. This resulted in inconsistent decisions in the lower courts, and Travelers cited cases from the Eleventh Circuit that breaches of a navigation limit warranty and the seaworthiness warranty bar coverage even when the breach is unrelated to the loss. Judge Jordan did not consider those decisions to establish that strict compliance with all warranties in marine policies is required, as that would be contrary to Wilburn Boat. Reviewing the cases addressing the captain and crew warranties, Judge Jordan declined to find an entrenched maritime rule and remanded the case to the district court to apply Florida law. Judge Jordan concluded with this comment: “Maybe, just maybe, this case will prove tempting enough for the Supreme Court to wade in and let us know what it thinks of Wilburn Boat today.” See June 2021 Update.
Travelers did not seek a writ of certiorari to find out what the Supreme Court thinks of Wilburn Boat today, and on remand, Judge Ruiz applied the rule from Florida law that the breach of warranty does not void the coverage unless it increased the hazard that the vessel would suffer the loss. Travelers cited the testimony of its expert, Captain Joseph Ahlstrom, to show that breaches of the captain and crew warranties caused or contributed to the loss of the vessel during Hurricane Irma. However, Captain Ahlstrom was designated as a rebuttal expert, and Judge Ruiz held that a party cannot rely on a rebuttal expert to avoid summary judgment. Rejecting evidence from witnesses who were not licensed captains (its underwriter, its adjuster, and the owner of the vessel), Judge Ruiz held that Travelers had failed to carry its burden to establish the defense, and the owner was entitled to summary judgment. See December 2021 Update.
On appeal, Travelers argued that it only had to show that the lack of a full-time captain generally makes vessels more susceptible to damage from hurricanes and that Florida law does not require that the insurer prove that the insured’s noncompliance with the captain warranty actually caused this incident. Travelers also argued that it did not have to introduce expert testimony about what would have been different if the insured had complied with the warranty and that it could satisfy its burden with hybrid fact-witness expert testimony. Finally, Travelers argued that Judge Ruiz erred in refusing to allow Travelers to use the testimony of its rebuttal expert to avoid the insured’s motion for summary judgment. Writing for the Eleventh Circuit, Judge Tjoflat held that Travelers was wrong on all of its arguments. He reviewed Florida cases and held that, in order to meet its burden under Florida’s Anti-Technical Statute, the insured must show that the breach of the warranty had a material effect on the loss in the circumstances of the specific incident. Judge Tjoflat also held that a lay witness may not competently offer an opinion on what a captain would have done with the MY LADY if a captain had been in charge, answering: “There is no such thing as ‘hybrid fact-expert witness testimony’ in the sense that Travelers claims.” Travelers’ witness, who was not disclosed as an expert, could discuss the weather and observations that he made. However, that would still leave the jury speculating about what a captain would have done differently in the specific circumstances of the case. As to the rebuttal expert, Travelers had the burden of proof, so, if the case went to trial, Travelers would have to establish that the lack of a captain had a material effect on the loss of the vessel. It could not use the rebuttal expert to carry that burden. After Travelers rested, the insured would move for judgment as a matter of law, which the court would have to grant. Therefore, Travelers had no legally sufficient case. Finally, Judge Tjoflat noted that Travelers had not filed a motion to redesignate its rebuttal expert as an expert for its case in chief, which sank its argument that Judge Ruiz erred in refusing to allow Travelers to use the opinion of its rebuttal expert to oppose the insured’s motion for summary judgment. Seeing “no need to give Travelers another bite at the apple,” the Eleventh Circuit affirmed the grant of summary judgment to the insured. See July 2023 Update.
After Ocean Reef obtained a judgment in excess of its insurance policy limits, its insurer, Travelers, paid the full judgment plus interest. Ocean Reef then brought this bad faith claim against Travelers under Florida law, seeking compensatory damages, punitive damages, attorney fees, and costs. The court previously held that the First Amended Complaint did not plead a plausible claim for punitive damages, and Travelers moved to dismiss the punitive damage allegations in the Second Amended Complaint. Magistrate Judge Reinhart noted that the allegations merely recited the elements of a statutory unfair claims settlement practice but did not provide factual detail to support the allegations. He added that the assertions did not “exclude the equally plausible conclusion that Travelers has acted negligently rather than with the higher mens rea needed for punitive damages.” Ocean Reef argued that it had sufficiently pleaded a general business practice, but Magistrate Judge Reinhart responded that an allegation of “similar bad faith conduct” is a legal conclusion, and two other instances of conduct are insufficient to plausibly allege a general business practice. He added that an allegation that an insurer failed to properly investigate a claim does not necessarily imply willful, wanton, or malicious behavior or a reckless disregard for the rights of the insured. Finally, Magistrate Judge Reinhart rejected the request in a footnote to the response that Ocean Reef should be given another opportunity to amend. Accordingly, Magistrate Judge Reinhart recommended that the punitive damage claim be dismissed and advised that Ocean Reef would have to file a motion for leave that attached a proposed amended pleading. Ocean Reef did not object to the recommendation. See April 2024 Update.
Ocean Reef then sought leave to file a Third Amended Complaint to add a claim for punitive damages, and Magistrate Judge Reinhart wrote a detailed lesson on the rules for pleading under the Federal Rules of Civil Procedure. He began with the requirements for bringing a suit and then explained the pleading threshold in Rule 8. He noted that the well-pled allegations frame the issues to be litigated and that the plaintiff is not entitled to discovery solely for the purpose of developing unpled claims. Magistrate Judge Reinhart also discussed amendments to pleadings, including what is necessary under Rule 16 when the deadline for amendments in the scheduling order has passed. Ocean Reef argued that it satisfied the good cause requirement for an amendment after the deadline in the scheduling order because it had diligently litigated the case despite Travelers’ repeated delays and because Travelers would not be prejudiced by allowing Ocean Reef to add a claim for punitive damages. Travelers responded that all of the facts cited by Ocean Reef as a basis to seek punitive damages (except one) were known to Ocean Reef when it filed its complaint, and Magistrate Judge Reinhart added that Ocean Reef had not cited a case that failure to obtain discovery was good cause for an amendment after the deadline and that the evidence cited by Ocean Reef was not related to the business practices that were the subject of the punitive damage claim. And, even if Ocean Reef had shown that it acted diligently enough to establish good cause, Magistrate Judge Reinhart concluded that the amendment would be futile because it would not survive a motion to dismiss for failure to state a claim. Magistrate Judge Reinhart explained that Ocean Reef had not plausibly alleged that Travelers’ general business practices involved willful, wanton, and malicious behavior or recklessly disregarded the rights of any insured. He added that it was not clear until the decision of the Eleventh Circuit in May 2021 that the Anti-Technical Statute applied to maritime claims, and the only instances cited by Ocean Reef of conduct violating rights of a policyholder were before that decision. Thus, there was not a plausible claim for punitive damages, and it would be futile to allow the amendment. Accordingly, Magistrate Judge Reinhart denied the motion for leave and held that no further amendments would be permitted. See December 2024 Update.
Travelers then moved for summary judgment on Ocean Reef’s first-party bad faith claim, arguing that no reasonable jury could find that it acted in bad faith by denying the claim at a time when it was unclear whether the Florida Anti-Technical Statute applied and because there was no evidence of damages resulting from any bad faith. Ocean Reef pleaded bad faith for failure to settle and unfair claim settlement practices, but its response focused on the claim for unfair claim settlement practices. Nonetheless, Magistrate Judge Reinhart analyzed the claim for failure to settle, noting that Travelers denied the claim under the belief that maritime law applied and that it could deny the claim without having to prove that the lack of a captain or crew contributed to the loss. Judge Ruiz reviewed hundreds of years of English and American precedent and conceded that the existing caselaw was a “mess.” The Eleventh Circuit harmonized the conflicting authorities by holding that maritime law did not prevent the Florida statute from applying to captain and crew warranties, reflecting that there was a question of complex federal law that was unresolved. Thus, it was not unreasonable for Travelers to seek clarification of the applicable law before settling the claim. Ocean Reef’s claim for unfair settlement practices also involved the anti-technical statute, including omitting discussion of the statute in its denial and then denying that it applied, failing to provide a reasonable explanation for that denial, and denying the claim without conducting a reasonable investigation of the statute’s causation requirement. Therefore, for the same reasons he gave in connection with the claim of failure to settle, Magistrate Judge Reinhard granted summary judgment with respect to the claim for unfair claim settlement practices. Finally, Magistrate Judge Reinhard considered the four categories of monetary damages, loss of use of money, attorney fees, prejudgment interest, and carrying costs for the loan secured by the yacht. Magistrate Judge Reinhard noted that the damages are for loss of use, not lost profits, because Ocean Reef is a company created to hold title to the yacht and is not an operating business trying to generate revenue. Ocean Reef argued that the denial of the claim in 2017 deprived it of the use of the insurance proceeds for six years during which it would have invested the proceeds into profitable real estate projects and that it was required to incur unnecessary loan carrying costs. However, Ocean Reef did not produce evidence of the interest payments, and the evidence of lost investment income was too speculative (it did not show that there were any particular investment opportunities that could not be pursued). Therefore, Magistrate Judge Reinhart entered a final judgment in favor of Travelers.
Admiralty jurisdiction applied to plane crash in California waters during Naval training exercise, and the state workers’ compensation exclusive remedy provision did not deprive the families of the deceased crewmembers from asserting claims under the general maritime law; Garner v. Phoenix Air Group, Inc., No. 3:24-cv-7720, 2025 U.S. Dist. LEXIS 135952 (N.D. Cal. July 16, 2025) (Tse).
Phoenix Air Group provided the United States Navy with aircraft and flight crews for naval training exercises. One of the planes departed from Point Mugu Naval Air Station near Oxnard, California. A fire erupted and the crane crashed off the coast of California, killing all three crewmembers. The training exercises were conducted entirely over the waters of the Pacific Ocean and within California territorial limits. The families of the crew brought this suit in California state court against Phoenix Air under the general maritime law, and Phoenix Air removed the case to California federal court based on the Federal Officer Removal Statute. Phoenix Air moved to dismiss the suit, arguing that admiralty jurisdiction did not exist and that the suit was barred by the exclusive remedy of the state workers compensation statute. Phoenix Air conceded that the crash occurred in navigable waters and that the crash could have disrupted maritime commerce. However, it argued that the flight did not bear a substantial relationship to traditional maritime activity, relying on the Supreme Court’s Executive Jet case in which the plane struck a flock of seagulls as it was taking off in Cleveland, Ohio on a flight to Portland, Maine and sank a short distance from shore in Lake Erie. Magistrate Judge Tse distinguished Executive Jet in which the crash was only fortuitously connected to navigable waters from the situation in this case in which the training exercise was conducted entirely over the Pacific Ocean. A crash into navigable waters “was entirely predictable.” Moreover, the purpose of the training exercise was maritime, sharpening the defensive capabilities of United States Navy vessels. Accordingly, Magistrate Judge Tse ruled that the court had admiralty jurisdiction. Phoenix Air also argued that the exclusive remedy provision of the Georgia workers’ compensation statute applied, excluding recovery under the maritime law, as Phoenix air is based in Georgia, and the crewmembers were Georgia residents, citing the Eleventh Circuit’s Brockington case. The plaintiffs cited contrary decisions, such as the Fifth Circuit’s Thibodaux case, holding that exclusive-remedy provisions in state workers’ compensation statutes cannot preclude non-seamen’s survivors from pursuing a wrongful death remedy under the general maritime law. Magistrate Judge Tse agreed with the decisions that did not find Brockington persuasive and held that “state workers’ compensation laws must yield to federal maritime law, assuming they conflict.” Therefore, he concluded that the families “have a right to sue for wrongful death and survival damages under general maritime law. Georgia law cannot deprive them of that right.”
Conclusory pleading of notice was insufficient to support passenger’s suit against cruise line arising from the passenger’s fall when a rung broke on a pool ladder; Brown v. MSC Cruises, S.A., No. 1:25-cv-20674, 2025 U.S. Dist. LEXIS 137591 (S.D. Fla. July 18, 2025) (Smith).
Linda Brown, a passenger on the MSC DIVINA, plunged to the bottom of a pool on the vessel after a wooden rung on a ladder used to enter the pool broke beneath her foot. Brown brought this suit against the cruise line in Florida federal court with a single negligence count that the cruise line failed to maintain the ladder rung or warn her of its dangerous condition. The cruise line moved to dismiss the suit on the ground that Brown had not sufficiently alleged that the cruise line had notice of the hazardous condition of the ladder rung. Brown alleged that the dangerous condition was created by the cruise line and/or existed for a sufficient length of time that the cruise line should have known of the conditions and taken action to remedy it. Judge Smith noted that the pleading did not include any facts to support the conclusory statements. Accordingly, he granted the motion to dismiss but granted leave to file an amended complaint.
Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act barred enforcement under the New York Convention of the arbitration clause in a seaman’s employment agreement in a sexual assault suit brought by the seaman against her employer/cruise line; Doe v. Celebrity Cruises, Inc., No. 1:25-cv-21035, 2025 U.S. Dist. LEXIS 139046 (S.D. Fla. July 21, 2025) (Ruiz).
Jane Doe, a citizen of the United Kingdom, was employed as a sommelier on the cruise ship CELEBRITY EDGE. After completing her shift, she and other crewmembers had drinks at the staff bar. Her next memory was waking up in the cabin of another crewmember who sexually assaulted her. She reported the incident to her supervisor and to the police at the next port of call in Athens, Greece. She brought this suit against the cruise line in state court in Miami-Dade County, Florida, alleging negligence under the Jones Act and unseaworthiness, maintenance and cure, vicarious liability for sexual assault, and intentional and negligent infliction of emotional distress. The cruise line removed the case to Florida federal court and moved to compel arbitration pursuant to the arbitration provision in her employment agreement. Doe responded that the motion should be denied under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA). Although Doe argued that claims of seamen are exempt from arbitration under the Federal Arbitration Act, Judge Ruiz held that the exemption was not applicable to international arbitration agreements that are subject to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention). The cruise line argued that the question of arbitrability had to be decided by the arbitrator pursuant to the delegation clause in the arbitration agreement; however, Judge Ruiz held that the provision in the EFAA (that the applicability of the statute to an agreement shall be determined by the court) required that the court decide whether the statute barred enforcement of the arbitration provision. The cruise line also argued that the scope of the EFAA did not reach the maritime allegations in the complaint because they did not plead a violation of a law such as Title VII or a state human rights statute. Judge Ruiz disagreed, reasoning that the statute applies to a case filed under Federal, Tribal, or State law that relates to a dispute involving a nonconsensual sexual act or sexual contact. Judge Ruiz explained: “Congress wrote the EFAA to apply when a plaintiff alleges a sexual assault dispute, not, as Defendant submits, when a plaintiff pleads a specific sexual assault claim, let alone a violation of a law explicitly prohibiting sexual assault.” Judge Ruiz had little trouble concluding that the suit related to a sexual assault dispute within the meaning of the EFAA, and, therefore, he declined to compel arbitration.
Another Louisiana Judge enforced a forum-selection clause in an attorney’s contract to represent a seaman (requiring arbitration in Houston) in a suit by the seaman against his lawyer alleging breach of legal duties (misappropriation of maintenance and cure payments); Thompson v. Buzbee, No. 2-24-cv-2827, 2025 U.S. Dist. LEXIS 139362 (E.D. La. July 22, 2025) (Long).
The July 2025 Update discussed the decision of Judge Milazzo of the United States District Court for the Eastern District of Louisiana in Guidry v. Buzbee, No. 2:24-cv-2873, 2025 U.S. Dist. LEXIS 89509 (E.D. La. May 9, 2025). Adam Guidry, a Louisiana resident and licensed ship captain who was injured on the job, retained the Hodge Law Firm to represent him in his claim against the owner of the vessel on which he was injured. The Hodge Law Firm associated Anthony Buzbee, a Texas attorney, and the Buzbee Law Firm, and Guidry brought this suit in federal court in Louisiana against Buzbee and his law firm, alleging that the “Defendants coerced him into settling his claim for less than one-third of the amount at which they initially valued it and retained 97% of the settlement amount for fees, expenses, and interest.” Guidry was “stunned to receive only $5,123.19” after the Defendants deducted $53,000 in fees and $266,876.81 in “expenses,” including $90,920.33 for expert witness fees, $5,935.01 for postage and copies, $9,763.20 for more copies, $9,493.05 for attorney travel expenses, and $150 for “closing fees.” Guidry asserts that the Defendants also deducted $25,723.52 in fees and expenses for the referring attorney (including $4,523.42 in expenses), and he added: “Worst of all, perhaps, the Buzbee Defendants charged Guidry $23,571.51 in ‘interest’ on $85,450 in ‘loans.’” The Buzbee Defendants objected to the Louisiana suit based on a Texas forum-selection clause in the Representation Contract that Guidry signed with the Hodge Law Firm. That Contract provided that the Hodge Law Firm may associate additional attorneys to assist in the representation, and Guidry signed a Consent to Association of Additional Counsel in which he agreed to the association of the Buzbee Defendants. The Buzbee defendants moved to dismiss the Louisiana suit based on forum non conveniens, and Guidry objected that the Buzbee Defendants could not enforce the forum-selection clause as they were not parties to the Representation Contract that contained the clause. Judge Milazzo noted that “the Fifth Circuit has adopted the ‘closely related’ doctrine to permit non-signatories to an agreement to enforce a forum selection clause where they enjoy ‘a sufficiently close nexus to the dispute or to another signatory such that it was foreseeable that they would be bound.’” Judge Milazzo reasoned that it was “more than foreseeable” that additional counsel might seek to enforce the forum-selection clause in this case in light of the terms of the original contract and the subsequent consent for the engagement of the Buzbee Defendants. Therefore, she held that the Buzbee Defendants could enforce the clause “because they enjoy ‘a sufficiently close nexus to the dispute.’” Guidry next argued that his claims for “fraudulent and tortious conduct” were outside the scope of the clause, but Judge Milazzo rejected that argument on the ground that the claims arose out of the Representation Contract and were, therefore, within the scope of the clause: “This Contract shall be governed by the laws of the State of Texas and any action shall be brought in the District Courts of Galveston County, Texas.” Judge Milazzo then balanced the public interest factors and held that this was not one of the “truly extraordinary cases” in which the public interest factors outweigh the forum-selection clause. Accordingly, she dismissed the case without prejudice. See July 2025 Update.
Matthew Ray Thompson was injured while working as a deckhand for Strategic Towing Services when the vessel on which he was working struck a barge in the Houston Ship Channel. Thompson hired Texas attorney Anthony Buzbee to sue Strategic Towing under the Jones Act, and a Power of Attorney and Contract of Employment governed Buzbee’s representation of Thompson. The suit settled, but Thompson was unhappy that Buzbee took more than 60% of the settlement, and he brought this suit against Buzbee and his law firm in federal court in Louisiana, accusing Buzbee and the firm of “fraudulently overstating case expenses” and converting to their own use maintenance-and-cure-funds intended to provide living and medical expenses for Mr. Thompson and his family while he was injured” (by receiving the funds and loaning them back to Thompson at high interest rates). Buzbee moved to stay the suit based on the Houston arbitration clause in the employment contract, and Thompson responded that the clause is illusory and unenforceable because it is one-sided. He is required to arbitrate, but Buzbee can choose to litigate or arbitrate. Judge Long noted that arbitration clauses do not generally require mutuality of obligation when there is consideration for the agreement. Thus, a stand-alone arbitration provision requires a promise on both sides as the mutual promises are the consideration. As the clause was part of the contract of employment, there was consideration without the need for mutuality in the arbitration provision. Although Thompson argued that the claims he presented do not fall within the scope of the arbitration provision, Judge Long disagreed, noting that the clause covers any dispute whatsoever arising out of the representation contract. Finally, Thompson argued that public policy precluded enforcement of the clause, citing a decision from a Louisiana appellate court that a clause was unconscionable due to lack of mutuality. Judge Long distinguished that case as it applied Louisiana law. The contract between Thompson and Buzbee provided for application of Texas law, which does not void an arbitration clause for lack of mutuality when it is part of a broader contract that contains consideration. Therefore, Judge Long granted the motion and stayed the case pending arbitration without reaching Buzbee’s motion for sanctions with respect to “immaterial, impertinent, and scandalous allegations” in the complaint asserting instances in which Buzbee allegedly preyed on other vulnerable seamen and clients.
Magistrate Judge recommended that a new jury be empaneled to award attorney fees after a jury found willful and arbitrary failure to pay maintenance and cure (and that the amount of attorney fees not be decided by the court); Magistrate Judge also recommended that prejudgment interest be denied on the jury’s award of damages for Jones Act negligence and unseaworthiness when the jury did not allocate between the negligence and unseaworthiness; Ward v. M/Y UTOPIA IV, No. 1:22-23847, 2025 U.S. LEXIS 141844 (S.D. Fla. July 23, 2025) (Goodman).
This litigation arises from the collision between the tanker TROPICAL BREEZE and the yacht UTOPIA IV in Bahamian waters. Eric Ward, a seaman on the UTOPIA IV was injured and brought this suit in federal court in Florida against the UTOPIA IV and its owner, Utopia Yachting, asserting claims for negligence under the Jones Act and for unseaworthiness and maintenance and cure under the general maritime law. Ryan Fitzgerald, a bosun on the UTOPIA IV, intervened in the suit to assert similar claims. Utopia then brought a counterclaim against Fitzgerald for tort indemnity and equitable contribution under the general maritime law, claiming that Fitzgerald was responsible for all third-party liabilities triggered by Fitzgerald’s negligence because he abandoned his non-delegable duty to ensure the safety of the vessel’s operation. Fitzgerald moved to dismiss the claim for contribution/indemnity, and Judge Scola noted that indemnity and contribution claims are only available in four narrow situations. The exception that was at issue in this case is if a party seeking indemnity/contribution is a vicariously liable or non-negligent tortfeasor. Judge Scola stated that the warranty of seaworthiness is an absolute, non-delegable duty to provide a seaworthy ship. As the warranty is non-delegable, unseaworthiness claims run directly against the shipowner and do not run against non-shipowners. Thus, Judge Scola held that Utopia could not base its claims on a theory of vicarious liability for unseaworthiness. For the Jones Act claim, Judge Scola reasoned that a seaman’s duty is to carry out the vessel’s orders and not to assess whether an order creates danger. Although Fitzgerald could be found to be comparatively at fault with respect to his own damages, he could not be liable for contribution/indemnity to Utopia under the Jones Act. Consequently, Judge Scola dismissed the counterclaim for indemnity/contribution. See July 2023 Update.
Six other crewmembers, including Fred Wennberg and Samuel Parrott, joined the suit. Some of the plaintiffs settled, and the case proceeded to a jury trial. The jury found that Utopia willfully and arbitrarily failed to pay cure and wages to Ward in the total amount of $445,000, that it willfully and arbitrarily failed to pay cure and wages to Parrott in the total amount of $182,000, and that it willfully and arbitrarily failed to pay cure in the amount of $540,000 to Wennberg. The plaintiffs then moved for court-awarded attorney fees in the amount of $1,121,284.98 based on the findings of willful and arbitrary failure to pay cure and wages. Utopia argued that the jury did not determine the entitlement to attorney fees, but Chief Magistrate Judge Goodman disagreed, stating that “the issue of entitlement was determined by the jury when it returned verdicts finding Utopia had willfully and arbitrarily failed to comply with its maintenance and cure obligations to Plaintiffs.” Utopia also argued that it did not agree to having the court award attorney fees, and that the jury was required to make the determination, relying on the decision of the Fifth Circuit in Kloster Cruise Ltd. v. DeSousa (holding that the plaintiff must present its evidence relating to the appropriate amount of attorneys’ fees to the jury unless the parties waive that right). Persuaded by that decision, Chief Magistrate Judge Goodman recommended that the court empanel a new jury to hear evidence and determine the reasonable fee. Finally, the plaintiffs sought prejudgment interest on the combined award to the plaintiffs of $1,372,300 on their Jones Act and unseaworthiness claims. As there was no allocation between the Jones Act and unseaworthiness claims, Chief Magistrate Judge Goodman recommended that prejudgment interest not be awarded (and that the breakdown between unseaworthiness and Jones Act negligence not be submitted to a new jury).
The widow and the mother of a passenger on a cruise ship who drowned on a shore excursion were not entitled to bring individual claims against the cruise line under DOHSA; claims for negligent misrepresentation and breach of a non-delegable duty were insufficient; Gong v. NCL (Bahamas), Ltd., No. 1:25-cv-21385, 2025 U.S. Dist. LEXIS 141846 (S.D. Fla. July 24, 2025) (Altonaga).
Hyon Duk Shin, a passenger on the NORWEGIAN GETAWAY, drowned during the Horseshoe Bay Beach excursion in Bermuda. Shin went into the water to save a girl who was caught in the current, and he managed to save her. However, there was no lifeguard to save him. His wife (Yanli Gong) brought this suit against the cruise line in Florida federal court, pursuant to the Death on the High Seas Act, asserting that the cruise line was negligent for failing to disclose known, recurring hazards, such as dangerous rip currents and the absence of lifeguards. She brought the suit individually, as personal representative of Shin’s estate, and as parent and natural guardian of their two minor children. Shin’s mother (Kwang Shin) also brought a claim in the suit. The cruise line moved to dismiss the individual claims of Ms. Shin and Ms. Gong on the ground that only the personal representative may bring the claims under DOHSA, and Chief Judge Altonaga dismissed their individual claims. The cruise line also moved to dismiss the claims for negligent misrepresentation (that the cruise line made false or misleading statements about the safety and difficulty of the excursion). As the plaintiffs failed to plead facts to support the statements with the specificity required under Rule 9(b), Chief Judge Altonaga dismissed the count without prejudice (but without leave to amend as the pleading deadline had passed). Finally, the cruise line moved to dismiss the count alleging breach of a non-delegable duty that arose from the cruise line’s “making representations, promoting, vouching for, contractor for and profiting from the excursion ticket contract.” Chief Judge Altonaga was “at a loss” as to the legal basis for the non-delegable duty theory, and she dismissed it without prejudice (but without leave to amend as the pleading deadline had passed).
Requirement that the seaman pay half of the initial filing fee for arbitration of his claims against the cruise line was not subject to the delegation clause in the arbitration provision and was declared unenforceable by the Judge (in the seaman’s injury suit) when the seaman could not afford to pay the fee; however, the payment requirement was severable, and the Judge compelled arbitration, requiring that the cruise line pay the arbitration fee; Wilson v. Carnival Corp., No. 1:24-cv-24984, 2025 U.S. Dist. LEXIS 141860 (S.D. Fla. July 24, 2025) (Williams).
Dean Wilson, a Nicaraguan citizen, who was serving as a galley assistant on the CARNIVAL VISTA, was injured when he slipped and fell while using a restroom on the vessel. In accordance with the arbitration provision in his employment agreement, Wilson filed a four-count Statement of Claim with National Arbitration and Mediation, and NAM sent him an invoice for half of the filing fee to initiate arbitration ($1,500). Wilson responded that he was unable to work and could not afford the fee. He asked that the fee be waived or that the cruise line pay his half. The cruise line declined to pay Wilson’s half of the fee, and NAM closed its file. Wilson then brought suit against the cruise line in state court in Miami-Dade County, Florida, asserting claims under the Jones Act and general maritime law, and the cruise line removed the case to federal court based on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention). Wilson moved to remand the case to state court, and the cruise line moved to compel arbitration. Wilson argued that the fee-splitting provision of the arbitration agreement effectively prevented him from presenting his claims. The cruise line cited the broad delegation clause in the arbitration provision and argued that the “gateway issue” of the application of the effective vindication doctrine had to be submitted in the arbitration. Judge Williams reasoned that the contention that the seaman cannot access the arbitrator, even to resolve gateway issues such financial inaccessibility, is a challenge to the delegation clause in substance. Therefore, Judge William considered the limited arbitrability inquiry whether the inability to pay fell within the defenses set forth in the New York Convention for an agreement that is “null and void, inoperative or incapable of being performed.” She concluded that a cost-based effective vindication challenge “fits neatly within the phrase, “incapable of being performed,” and she addressed the merits of Wilson’s challenge. After agreeing that Wilson’s financial situation rendered the arbitration provision incapable of being performed and was unenforceable, Judge Williams cited the severability clause and held that the fee-splitting provision was severable from the arbitration requirement. Therefore, she granted the motion to compel arbitration but severed the initial fee-splitting provision and held that the cruise line must pay for all reasonable administrative costs of the arbitration.
Owner of bareboat charterer did not have a lien for necessaries on the vessel, and his lien was stricken from the Coast Guard records; Hex Stone Inc. v. JRC Marine, LLC, No. 2:19-cv-12264, 2025 U.S. Dist. LEXIS 142431 (E.D. La. July 25, 2025) (Milazzo).
Hex Stone, owner of the M/V MISS DIXIE, bareboat chartered the vessel to JRC Marine for five years. Ranny Fitch, owner and operator of JRC Marine, guaranteed redelivery of the vessel free and clear of liens; however, Hex Stone claims that JRC Marine failed to pay charter hire, incurred liens on the vessel, and abandoned the vessel at a shipyard in Houma, Louisiana ten months into the charter. There were liens on the vessel filed by Larry Fitch, NRE Power Systems, and Ranny Fitch. Hex Stone brought this suit against JRC Marine in Missouri federal court, and the case was transferred to federal court in Louisiana where another case was pending against JRC Marine. Hex Stone brought claims for breach of contract against JRC Marine, claims on the guarantee of Ranny Fitch, and claims to quiet title against Larry Fitch, Ranny Fitch, and JRC. Hex Stone filed a motion to quiet title to the MISS DIXIE (and to strike the liens from the Coast Guard records), and the motion was formally opposed but without reasons. Thus, Judge Milazzo considered the merits of the liens. As the evidence reflected that the liens of Larry Fitch and NRE Power Systems had been satisfied, Judge Milazzo ordered that they should be stricken from the Coast Guard records. With respect to the lien asserted by Lanny Fitch, Judge Milazzo agreed with the conclusion reached in the related litigation that Ranny Fitch is not a person providing necessaries to the vessel, that the lien violated an explicit provision in the charter, and that the lien was invalid. Therefore, she ordered the lien be stricken from the Coast Guard records.
Magistrate Judge declined to exclude opinion of liability expert in case arising from allision during Hurricane Ian and denied summary judgment contending that it was not the allision that caused the sinking and that an Act of God and not negligence caused the allision; In re Toca, No. 2:23-cv-303, 2025 U.S. Dist. LEXIS 143294 (M.D. Fla. July 28, 2025) (Dudek).
This case involves an allision in the Fort Myers Yacht Basin during Hurricane Ian when the MADAME MUSIQUE came loose from its mooring and struck the KNOT SPEED, which was secured to the adjacent dock. The members of the crew of the MADAME MUSIQUE believe that the KNOT SPEED sank before the allision, although they abandoned ship before it broke free and did not witness the allision. Their deduction was based on the position of the vessels after the sinking (with the MADAME MUSIQUE resting on top of the KNOT SPEED. The owner of the MADAME MUSIQUE, Randal Toca, brought this suit in Florida federal court seeking exoneration from/limitation of liability and moved for summary judgment that he should be exonerated from fault. Toca retained an expert, David Morris, who interviewed many witnesses and concluded that the KNOT SPEED was partially submerged before the allision because several dock pilings penetrated its hull. The owner of the KNOT SPEED, Ted Hobson, retained George M., Zeitler, a retire Coast Guardsman, and he opined, from review of documentary evidence, that the MADAME MUSIQUE allided with the KNOT SPEED and that the force of the allision combined with the wind and storm surge to press the KNOT SPEED atop wood pilings that penetrated its hull and caused it to sink. Toca moved to exclude Zeitler’s testimony and for summary judgment that the allision resulted from an act of God, not negligence. Toca argued that Zeitler’s opinions were unreliable because they were formed without interviewing any of the individuals who were present when the damage occurred. Magistrate Judge Dudek did not believe that the failure to interview witnesses was sufficient to exclude his testimony, stating that the evidence considered by the expert affects the weight of his testimony, not its admissibility. Turning to the motion for summary judgment, Toca argued that the collision did not cause the KNOT SPEED to sink, citing the testimony that the vessel was damaged and had taken on water before the MADAME MUSIQUE broke free. However, there was evidence that the KNOT SPEED was still “floating okay” when it was struck by the MADAME MUSIQUE. Toca’s other argument was that Hurricane Ian, not the negligence of the crew of the MADAME MUSIQUE, caused the allision and sinking. Magistrate Judge Dudek cited the evidence that Toca and his crew waited too long to move the MADAME MUSIQUE to the slip, that they should not have selected the dock at which the vessel was moored as its pilings were too short to keep the vessel from shifting on top of the dock and the dock was more exposed to the river than others in the basin, and the mooring arrangement at the dock was inadequate. Therefore, he denied the motion for summary judgment.
Allegations of prior similar incidents and internal safety policies were insufficient to establish notice in passenger’s suit based on his slip and fall on steps leading out of the pool on the cruise ship; Wheeler v. MSC Cruises, S.A., No. 0:25-cv-60384, 2025 U.S. Dist. LEXIS 143819 (S.D. Fla. July 28, 2025) (Leibowitz).
Zachary Wheeler, a passenger on the SEASHORE, slipped and fell while attempting to exist a “whirlpool” on Deck 8 of the vessel. He brought this suit against the cruise line in Florida federal court, arguing that the steps leading out of the pool posed a slipping hazard that was not apparent to passengers. The cruise line moved to dismiss the complaint for failing to sufficiently allege notice, and Wheeler cited his allegations of prior incidents and internal safety policies. Wheeler alleged six prior incidents (involving wet, slippery areas on pool decks, steps, and floor surfaces) on the SEASHORE and similar vessels of the cruise line in its sister class. However, Judge Leibowitz agreed with the cruise line that Wheeler had not pleaded how the six incidents were substantially similar to Wheeler’s fall to put the cruise line on notice of a dangerous condition. Citing analysis from Judge Moore, Judge Leibowitz was “left to wonder . . . ‘Was the dangerous condition similar or the same to the one here? Where and how did the accident occur? . . . Did the accident occur in a high-traffic area? Did Defendant take any precautionary actions? The list goes on.’” Wheeler also argued that the cruise line’s established internal standards (including co-efficient of friction standards for pool decks, steps, and other foreseeably slippery surfaces used in heavily trafficked areas near water) indicated the cruise line had constructive knowledge of the dangerous condition. Judge Leibowitz responded that the standards were not a policy designed for a specific hazardous condition. He described Wheeler’s argument as a “conclusory allegation as to Defendant’s policies regarding slippery surfaces in general.” He concluded: “The mere allegation that a defendant had developed safety standards applicable to the site of an alleged injury is insufficient to survive a motion to dismiss, even when coupled with allegations of prior similar incidents. Accordingly, Judge Leibowitz dismissed the complaint without prejudice, with leave to amend.
Sailor’s claim of exposure to asbestos while on launched vessels was maritime, and he was not entitled to assert a claim for punitive damages unless he claimed that his exposure against a supplier was only in a land-based setting; Armstrong v. Paramount Global, No. 3:25-cv-925, 2025 U.S. Dist. LEXIS 144403 (N.D. Cal. July 28, 2025) (Lin).
Vernon Armstrong claims that he developed lung cancer from exposure to asbestos while serving in the Navy on launched vessels. He brought this suit in California federal court against Foster Wheeler and other suppliers of asbestos products. He sought punitive damages from the defendants, alleging willful and reckless failure to warn him about the dangers of their asbestos products, and Foster Wheeler moved to dismiss his claim for punitive damages on the ground that punitive damages are not available under the maritime law. Judge Lin began by determining that both the location and connection tests for admiralty jurisdiction were satisfied with the claim of exposure to asbestos on navigable waters. Armstrong argued that his claim was not limited to exposure aboard floating vessels; however, Judge Lin responded that the test only requires that a portion of the exposure occur while the vessel was on navigable waters. Armstrong also argued that punitive damages are available under maritime law, but Judge Lin reasoned that, as the Jones Act does not permit recovery for non-pecuniary damages, “punitive damages are not available to Armstrong under maritime law.” Therefore, Judge Lin dismissed the claim for punitive damages, but she granted Armstrong leave “to reassert punitive damages if he could allege that his exposure to their products occurred in a land-based setting, and that his current allegations regarding his exposure aboard launched vessels pertain only to the other Defendants.”
Judge addressed expert opinions in suit over coverage under marine cargo insurance policy for fire damage outside a warehouse; Liberty Mutual Insurance Co. v. Day to Day Imports Inc., No. 1:22-cv-2181, 2025 U.S. Dist. LEXIS 144858 (S.D.N.Y. July 29, 2025) (Tarnofsky).
This case involves insurance coverage under a marine cargo insurance policy for damage from a fire outside a warehouse in Gardena, California to items on outbound trailers awaiting transport, items in seven sea containers that were in the process of being unloaded and moved into the warehouse, and items that were not in trailers or sea containers that had been transported to the facility. Insurer Liberty Mutual took the position that the policy did not cover the damage because the goods were not “in the ordinary course of transit” at the time of the fire, as required by the Warehouse to Warehouse and Marine Extension Clause as well as the Domestic Transit Coverage Endorsement. The parties engaged experts, and Judge Tarnofsky wrote extensively on the admissibility of the opinions of 1) Jon Fox, a logistics expert engaged by Liberty Mutual to testify whether it was beyond control of the cargo interests that goods had not completed transportation before the fire; 2) Peter Curzio, who was engaged by Liberty Mutual to testify with respect to industry practice on claims investigation and adjustment; (3) Christopher Bonanti, who was engaged by Liberty Mutual with respect to regulatory and compliance requirements of the interstate shipment of hazardous materials; 4) Barry Zalma, who was engaged by the cargo interests to testify about insurance coverage and insurance claims handling practices; and (5) Joseph B. Michaels, a logistics expert who was engaged by the cargo interests to opine on whether the goods were in transit or in the ordinary course of transit and whether any delay in completing the shipments was in the control of the cargo interests.
There were fact questions of negligent entrustment of the jet ski rental company that rented a jet ski to a person who allowed the jet ski to be operated by another person who had used cocaine and ingested alcohol; maritime law did not preempt the state statute on rental of watercraft for the negligence per se claim, but there was a question whether there was substantial compliance with the statute; Judge bifurcated the proceedings with liability and damages in a jury trial and limitation of liability in a subsequent nonjury trial; jury would be instructed to assess proportionate responsibility for settling defendants under McDermott v. AmClyde; Lynch v. Laughlin Watercraft Rentals, LLC, No. 2:21-cv-1981, 2025 U.S. Dist. LEXIS 145821 (D. Nev. July 29, 2025) (Traum).
Tammy Lynch was a passenger on a jet ski on the Colorado River in Laughlin, Nevada when Samir Hernandez, who had used alcohol and cocaine earlier in the day, crashed his jet ski into Lynch, resulting in her death. Laughlin Watercraft Rentals rented the jet ski operated by Hernandez to Lizbeth Barragan and Ricado (unknown last name), who let Hernandez use it. The beneficiaries of Tammy Lynch brought this suit in federal court in Nevada against Laughlin Watercraft, Barragan, Hernandez, Lynch’s boyfriend who was piloting the jet ski on which she was a passenger, and the jet ski company that rented the jet ski to Lynch’s boyfriend. Laughlin Watercraft asserted affirmative defenses to the complaint, filed a separate limitation action, moved for summary judgment on superseding cause and lack of privity or knowledge, and moved for bifurcation. The beneficiaries moved for summary judgment on their negligent entrustment claim against Laughlin Watercraft and on its affirmative defenses. Beginning with the negligent entrustment claim, Laughlin Watercraft argued that it had no duty to warn Lynch of the inherent risks of jet skiing or the criminal acts of others, no duty to train a renter or non-renter, and no duty to police its watercraft to make sure that renters are following rules. Judge Traum answered that the arguments were not responsive to the substantive issue for negligent entrustment—whether Laughlin Watercraft should have known that Barragan or Ricardo would use the jet ski unsafely, specifically, whether it was foreseeable that they would allow someone else to pilot the jet ski unsafely. As Laughlin Watercraft allowed Barragan to be the sole signatory on the forms required to rent and operate the jet ski after she told Laughlin Watercraft that she would not be the one to operate it, Judge Traum found sufficient evidence to deny summary judgment to Laughlin Watercraft. Similarly, as Laughlin Watercraft knew enough to be liable for negligent entrustment, it knew too much to be eligible as a matter of law for limitation of liability. Judge Traum then considered superseding cause. One set of factors, whether the intervening cause brings about harm that is not different in kind than expected from the defendant’s negligence, favored the beneficiaries. A second set of factors, considering the culpability of the intervening cause, indicated that the intervening cause was likely a superseding cause. Thus, Judge Traum declined to determine the proximate cause by summary judgment. Judge Traum next considered the beneficiaries’ argument that they were entitled to summary judgment that Laughlin Watercraft was liable for negligence per se because it violated the Nevada statute requiring an affidavit from watercraft renters with respect to the requirements for rental of a vessel. Barragan signed the form to verify the information, but it was not sworn. Laughlin Watercraft argued that the statute was not applicable because it was preempted by maritime law and that, if it applied, Laughlin Watercraft had substantially complied with the requirement. Judge Traum rejected the argument that the statute was preempted, reasoning that Laughlin Watercraft had not shown how the statute disrupts uniformity in maritime law or contravenes an act of Congress. However, in the absence of authority interpreting the statute, she assumed, without deciding, that only substantial compliance was required and declined to grant summary judgment to the beneficiaries. With respect to affirmative defenses, the beneficiaries challenged the assertion of comparative negligence and assumption of risk. Judge Traum responded that assumption risk is not an affirmative defense, but that Laughlin Watercraft would be allowed to argue comparative negligence as a theory limiting liability. Laughlin Watercraft requested bifurcation with a bench trial on liability and a jury trial on damages, if necessary. As the case involves both liability and limitation, Judge Traum held that liability and damages would be tried in one jury trial. Thereafter, the court will address limitation. Finally, Judge Traum considered the effect of the settlements with Lynch’s boyfriend and the other jet ski rental company and held that, pursuant to the decision of the Supreme Court in McDermott v. AmClyde, the jury will be instructed to assess proportionate responsibility for the settled defendants.
Judge declined to set aside default entered against foreign dive shop in suit involving diving accident off the coast of Belize, concluding that there was admiralty jurisdiction and personal jurisdiction for the accident in foreign waters; Flaherty v. Amigos Del Mar Ltd., No. 1:20-cv-11485, 2025 U.S. Dist. LEXIS 145908 (D. Mass. July 30, 2025) (Saris).
Susan Flaherty, a resident of Massachusetts, was injured on a scuba diving trip operated by Amigos Del Mar, a foreign company with its principal place of business in Ambergris Caye, Belize. She was taken by boat to a dive site known as “Tackle Box,” located about a mile from shore, just past the barrier reef. She was pushed into the water while the vessel’s propellers were still engaged, resulting in her serious injury. Flaherty brought this suit against Amigos Del Mar in federal court in Massachusetts, asserting that the court had admiralty jurisdiction. She served Amigos Del Mar under the Hague Convention. Amigos Del Mar did not respond, and the court entered a default judgment in the amount of $6,238,322.72. Two years later, Amigos Del Mar moved to vacate the default judgment based on a lack of subject matter jurisdiction and personal jurisdiction. Amigos Del Mar argued that there was no maritime jurisdiction because the incident occurred in the navigable waters of Belize, citing the statement from the decision of the Supreme Court in Victory Carriers v. Law that maritime law only governs torts occurring on the navigable waters of the United States. Judge Saris recognized that "a handful of courts have adopted that view," but she cited the treatises that explained that the language was not restrictive and that torts occurring within foreign waters fall within the admiralty jurisdiction. Thus, she held that the locality requirement was met. Turning to the connection requirement for admiralty jurisdiction, Judge Saris noted that there is authority for the proposition that incidents involving recreational scuba diving do not meet the connection test. However, she distinguished the situation in Flaherty’s case as her injury was caused by the operation of the vessel (failure to disengage the propeller). Therefore, she declined to vacate the judgment based on the contention that the court lacked admiralty jurisdiction. As to personal jurisdiction, Amigos Del Mar argued that it has no office, bank account, or physical presence in Massachusetts, but Flaherty responded that the defendant solicited American customers, used WhatsApp to book dive trips, listed prices in U.S. dollars, and maintained a United States-oriented website. There was extensive contact between Flaherty and a Belize resident she knew who was labeled by Amigos Del Mar as part of the “Amigos Staff and Crew.” As there was an “arguable basis” that Flaherty’s claims arose out of Amigos’ forum-based conduct, Judge Saris held that the court could exercise personal jurisdiction over Amigos Del Mar. Therefore, she declined to set aside the judgment.
Port of Seattle was entitled to take possession of old fishing boats that were intended to be put back in service (but for the COVID pandemic) as derelicts and to recover the cost of disposing of the vessels; Port of Seattle v. Wang, No. 2:24-cv-735, 2025 U.S. Dist. LEXIS 146434 (W.D. Wash. July 30, 2025) (Lin).
The 60-foot wooden commercial fishing boat ALMA (built in 1929) and the 62-foot wooden commercial fishing boat THOR (built in 1925) were docked at Fisherman’s Terminal, a marina and storage facility operated by the Port of Seattle, between 2015 and 2023. The Port alleged that Donald Wang purchased the vessels for $1 apiece in 2015 and 2016, and Wang entered into an agreement with the Port, on behalf of the Frances D. Wang Living Trust, for the mooring of the ALMA. The Port also noted that Wang spent more than $100,000 for repairs on the vessels (Wang intended to send them out for fishing but was prevented from doing so by the COVID pandemic). Wang failed to provide proof of insurance on the vessels or to make payment for moorage and utilities, and the Port began the process to seize control of the ALMA and THOR as derelict vessels. After a hearing before the Pollution Control Hearing Board, the Port was allowed to take possession, remove, and dispose of the vessels. The Port paid $116,030.07 to remove and dismantle the ALMA and $103,155.25 to remove and dismantle the THOR. The Port then brought this suit in admiralty against Wang in Washington federal court, seeking to recover its costs and attorney fees, and the Port moved for summary judgment. Wang argued that the true owners of the vessels were the Frances D. Wang Living Trust and Tuna Galore LLC. However, the Port responded that the ownership of the vessels was determined at the administrative hearing in which Wang held himself out as the owner. Applying the doctrine of collateral estoppel based on Wang’s conduct and admissions, Judge Lin held that Wang was the owner of the vessels. Judge Lin also agreed that the vessels were derelict within the meaning of the Washington Derelict Vessel Act, and she granted judgment to the Port for the costs of seizing and disposing of the vessels, the costs of defending the decision to take custody of the vessels, mooring and utility costs, and attorney fees.
State court lawsuit between the pilots in Houston and Galveston/Texas City over the authority to provide compulsory pilotage services in the Bolivar Roads Anchorage was not removable to federal court; Galveston-Texas City Pilots Association v. Houston Pilots, No. 3:25-cv-160, 2025 U.S. Dist. LEXIS 146845 (S.D. Tex. July 31, 2025) (Edison), recommendation adopted, 2025 U.S. Dist. LEXIS 159358 (S.D. Tex. Aug. 18, 2025) (Brown).
A dispute arose between the pilot associations in Houston and Galveston/Texas City as to which group was authorized to provide compulsory pilotage services in the Bolivar Roads Anchorage, the waterway between Galveston Island and Bolivar Peninsula that connects the Gulf of America and Galveston Bay. The Galveston pilots brought this suit against the Houston pilots in state court in Galveston County, Texas, and the Houston pilots removed the case to federal court based on federal question jurisdiction and admiralty jurisdiction. The Houston pilots argued that the Galveston pilots were attempting to deny the Houston pilots their rights under their federal pilot license. Magistrate Judge Edison noted that federal law generally leaves it to the states to regulate pilotage except that coastwise vessels are exempted from the Texas scheme and are required to use the services of federally licensed pilots. Thus, the existence of federal question jurisdiction was dependent on whether the complaint sought relief involving the federally regulated coastwise trade. As the Galveston pilots submitted a more definite statement that coastwise trading vessels were excluded from the suit, no federal right was involved (Magistrate Judge Edison explained that it was “of no moment” that the Bolivar Roads Anchorage is federally created and administered as the federal government has left it to the states to regulate pilotage). As to whether the suit could be removed based on the court’s original admiralty jurisdiction, Magistrate Judge Edison noted that there is no binding precedent from the Fifth Circuit “that removal is proper in this situation.” Citing the “lack of clarity on this point,” he sided with the majority view that admiralty cases cannot be removed absent an independent basis for federal jurisdiction and recommended that the case be remanded to state court. Judge Brown agreed with the recommendation and ordered the case remanded.
From the state courts
Appellate court reversed the granting of leave for a seaman to add a claim for punitive damages for willful and callous failure to pay maintenance and cure based on the termination of payments after retention of counsel and the seaman’s rejection of a settlement offer; Marshall Milton Corp. v. Petit-Homme, No. 3D24-762, 2025 Fla. App. LEXIS 5096 (Fla. 3d DCA July 2, 2025) (Lobree).
Mark Andres Petit-Homme injured his hand on Marshall Milton’s vessel on March 19, 2022 and was treated at a hospital in Nassau, The Bahamas, including a partial amputation of his index finger. After his discharge, he stayed at a hotel to recover and returned to the ship a few weeks later. He was not required to work, but he opted to perform some duties. He chose to leave the ship a few months later, and Marshall Milton continued to pay his full salary and provided his family a rent-free apartment. Eventually, Marshall Milton turned the claim over to Omega Marine Claims, a third-party adjuster, and Petit-Homme sought treatment for pain and swelling in his long finger after using his hand at work. Marshall Milton gave Petit-Homme a $10,000 bonus for expenses in December 2022, and the captain of the vessel asked Petit-Homme to fill out paperwork for direct deposit as he had recently become a United States citizen. The captain explained that the paperwork was not a contract, but Petit-Homme responded: “I’ve been thinking and I decided that the ocean just isn’t for me anymore, You could call the office and tell them to stop my pay.” At that time, Marshall Milton stopped paying salary and rent, but the captain went to Petit-Homme’s home and offered him $175,000 to settle his claims. Petit-Homme declined and filed suit against Marshall Milton in state court in Miami-Dade County, Florida, seeking to recover for negligence, unseaworthiness, and failure to pay maintenance and cure. A month later, the treating doctor determined that Petit-Homme had reached maximum medical improvement for his long finger, but he did not examine Petit-Homme’s index finger. Petit-Homme later sought to amend his complaint to assert a claim for punitive damages for willful and arbitrary failure to pay maintenance and cure, arguing that Marshall Milton failed to pay Petit-Homme after he declined to sign the contract without investigating whether he quit or was wrongfully terminated and failed to investigate whether he still needed treatment for his index finger. Marshall Milton responded that Petit-Homme voluntarily quit, his medical expenses were paid, he did not seek any further treatment for his index finger, and any failure to pay maintenance after he quit was a misunderstanding with the insurance company. Judge Rodriguez allowed Petit-Homme to add the claim for punitive damages, and Marshall Milton appealed to the Florida Court of Appeal for the Third District. Petit-Homme argued that his benefits were wrongfully terminated after Petit-Homme retained counsel and declined the settlement offer. Writing for the court of appeal, Judge Lobree noted that Marshall Milton terminated benefits because Petit-Homme quit his job, and Petit-Homme did not respond that he had been wrongfully terminated. Judge Lobree added that the cessation of benefits could not have been in response to the rejection of the settlement offer as the benefits were terminated before the settlement offer was made. Petit-Homme also argued that the investigation of the injury to his index finger was lax because the doctor was not instructed to review the injury to his index finger. Judge Lobree responded that the doctor did not evaluate the index finger because Petit-Homme did not complain of any pain in that finger or ask for a review of that finger. The doctor testified that the injury was “remarkably benign” and that he likely would have determined that the finger had reached maximum improvement. Concluding that the evidence was insufficient to establish that Marshall Milton acted in a willful and callous matter in terminating benefits, the appellate court held that Judge Rodriguez erred in granting leave to Petit-Homme to add a claim for punitive damages.
Kenneth G. Engerrand
President, Brown Sims, P.C.
Houston 1990 Post Oak Blvd Suite 1800 Houston, TX 77056 O 713.629.1580
New Orleans 365 Canal Street Suite 2900 New Orleans, LA 70130 O 504.569.1007
Gulfport 1915 23rd Suite B Gulfport, MS 39501 O 228.867.8711
Miami 2801 SW 149th Ave Suite 120 Miramar, FL 33027 O 305.274.5507
Quote
In explaining the discretionary function exception in the Suits in Admiralty Act, with respect to a boating accident allegedly caused by the failure of the Coast Guard to maintain navigational aids warning mariners of the presence of a dike on the edge of a river, Judge Quattlebaum of the Fourth Circuit stated:
Any parent will understand this distinction. If you tell your teenage son to be home by 11:00 PM, he has no discretion—he must follow a specific course of action. On the other hand, if you tell your teenage daughter to be home by a reasonable hour, you did not require a specific course of action; she has discretion about what is a reasonable time to be home.
Judge Quattlebaum added in a footnote:
The references to a son and a daughter in this illustration are not intended to reflect gender stereotypes. It is possible, however, that they reflect the author's parenting experiences.
See Barnett v. United States, 132 F.4th 299, 306 & n.8 (4th Cir. 2024).
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© Kenneth G. Engerrand, August 28, 2025; redistribution permitted with proper attribution.
