September 2026 Longshore Maritime Update No. 328
Notes from your Updater:
The August 2026 Update reported that Judge Nichols of the United States District Court for the District of Columbia granted in part and denied in part Empire Offshore Wind’s motion to dismiss the suit brought by Save Long Beach Island, Dr. Robert Stern, and others against the United States (Empire Offshore Wind intervened as a defendant), challenging the approval to build a wind farm off the coast of New York and New Jersey. Judge Nichols declined to dismiss the claim for violation of the Marine Mammal Protection Act with respect to the “take” of Northern Migratory Coastal Bottlenose Dolphins (a claim that was not involved in the dismissal of a related challenge in a suit in New Jersey). See Save Long Beach Island, Inc. v. United States Department of Commerce, No. 1:25-cv-2214, 2026 U.S. Dist. LEXIS 166104 (D.D.C. July 27, 2026). The related challenge in New Jersey was dismissed in Save Long Beach Island v. Atlantic Shores Offshore Wind, LLC, No. 3:24-cv-9377, 2026 U.S. Dist. LEXIS 93940 (D.N.J. Apr. 20, 2026). In that case Judge Quraishi rejected the challenge asserting harm that construction and operational noise would cause local residents based on preemption of state law by the Outer Continental Shelf Lands Act, which grants the federal government complete “jurisdiction, control, and power of disposition” over the OCS and which has “no gap” in coverage with respect to construction and operation of offshore wind projects on the OCS that could be filled by state law.
The August 2024 Update reported that the United States Court of Appeals for the D.C. Circuit vacated the decision of the Federal Maritime Commission that held the detention charges that Evergreen Shipping Agency (America) Corp. collected from TCW, Inc., a trucking company, for the late return of a container were "unjust and unreasonable" insofar as the charges were for days when the Port of Savannah was closed and could not have accepted a returned container. Writing for the appellate court, Judge Ginsburg stated that the reasoning of the FMC is “charitably put, implausible.” Remanding the case, Judge Ginsburg concluded that the FMC must, at a minimum, provide a logical explanation for its view. Perhaps it can do so on remand, but so far it has done the very opposite.” See Evergreen Shipping Agency (America) Corp. v. Federal Maritime Commission, No. 23-1052, 2024 U.S. App. LEXIS 16457 (D.C. Cir. July 5, 2024). On remand, the FMC again ruled that charging detention during the closure of the Port would not have promoted freight fluidity and was, therefore, unreasonable. Evergreen filed another petition for review, but, on April 28, 2026, the Court of Appeals for the D.C. Circuit denied the petition for review, stating that “FMC specifically discussed each fact and explained why it was not enough to make the detention charges reasonable.” See Evergreen Shipping Agency (America) Corp. v. Federal Maritime Commission, No. 25-1104, 2026 U.S. App. LEXIS 12089 (D.C. Cir. Apr. 28, 2026) (Edwards).
On June 22, 2026, Judge Schofield of the United States District Court for the Southern District of New York confirmed arbitration awards in favor of Thayermahan Inc. against Atlantic Oceanic LLC in connection with the charter of two multi-purpose supply vessels owned by Atlantic Oceanic, the MPSV ATLANTIC BREEZE ($3,221,764.80), and the MPSV ATLANTIC SPIRIT ($857,556.51). Judge Schofield also granted the request to allow immediate enforcement of the judgment, finding that “the record reflects a well-founded risk that Respondent [Atlantic Oceanic] will conceal or dissipate assets that otherwise may be available to satisfy the judgment.” See Thayermahan Inc. v. Atlantic Oceanic LLC, No. 1:26-cv-3702, 2026 U.S. Dist. LEXIS 138248 (S.D.N.Y. June 22, 2026). This decision followed the ruling on May 12, 2026 by Judge Summerhays of the United States District Court for the Western District of Louisiana, confirming the arbitration award in favor of Fleetzero and denying the petition to vacate filed by Atlantic Oceanic with respect to an arbitration award in the amount of $4,147,725.59 arising from the charter of Fleetzero’s offshore service vessel PACIFIC JOULE to Atlantic Oceanic. Judge Summerhays granted Fleetzero’s request to allow immediate enforcement of the judgment, concluding that Fleetzero had “submitted sufficient evidence to satisfy the Court that there is a risk of diminution of assets which would impact Fleetzero’s ability to collect its judgment.” See Fleetzero Inc. v. MN ATLANTIC POWER, No. 6:25-cv-1686, 2026 U.S. Dist. LEXIS 105165 (W.D. La. May 12, 2026).
On August 3, 2026, the Eleventh Circuit held that Congress may make a conspiracy to commit drug trafficking in international waters a criminal offense in connection with the interdiction by the Coast Guard of two stateless self-propelled semi-submersible vessels carrying thousands of kilograms of cocaine in international waters headed from Colombia to Mexico. See United States v. Pineda-Torres, No. 24-10290, 2026 U.S. App. LEXIS 23155 (11th Cir. Aug. 3, 2025) (Pryor).
On August 10, 2026, the United States Department of Justice announced:
Today, a vessel operating company pleaded guilty and was sentenced, and the company’s chief engineer was sentenced to pay a fine, following a June 2024 incident where the vessel MSC Michigan VII caused the evacuation of a large bridge in Charleston, South Carolina, and created a large wake that injured two people, damaged ships and piers, and led to the clearing of local beaches.
MSC Shipmanagement Limited (MSC), a vessel operating company, was sentenced to pay a criminal fine of $6 million and to serve a four-year term of probation for failing to report a hazardous condition on board the containership MSC Michigan VII and to obstructing a National Transportation Safety Board (NTSB) and U.S. Coast Guard (USCG) investigation. MSC must also conduct a root-cause analysis of the circumstances relating to the hazardous conditions onboard the MSC Michigan VII.
MSC’s chief engineer, Fernando San Diego San Juan, was sentenced to pay a $2,000 fine. He previously pleaded guilty, also for failing to report a hazardous condition and obstructing the investigation.
See United States v. MSC Shipmanagement Ltd, No. 2:26-cr-683 (D.S.C.); United States v. San Juan, No. 2:25-cr-1123 (D.S.C.).
On August 12, 2026, the Fifth Circuit vacated the approval of the Maritime Administration of the application of Texas GulfLink, LLC to construct a deepwater port that would intersect with another deepwater port’s pipeline (Sea Port Oil Terminal), determining that the approval violated the requirement in the Deepwater Port Act that there be only one deepwater port per application area. See Citizens for Clean Air & Clean Water in Brazoria County v. United States Department of Transportation, No. 25-60202, 2026 U.S. App. LEXIS 24372 (5th Cir. Aug. 12, 2026) (Clement).
The Update has reported that the Ninth Circuit applied the work-preservation doctrine as a complete defense to the claims brought by Samson Tug & Barge Co. against International Longshore & Warehouse Union, Alaska Longshore Division, and International Longshore & Warehouse Union, Unit 222, under the Labor Relations Management Act in connection with longshore work conducted at the Womens Bay terminal owned by Matson Navigation Co., which is a signatory to the All-Alaska Longshore Agreement. See Samson Tug & Barge Co. v. International Longshore & Warehouse Union, Nos. 24-5730, 24-6017, 2025 U.S. App. LEXIS 21565 (9th Cir. Aug. 22, 2025) (per curiam). Samson Tug filed a petition for rehearing en banc, and on September 30, 2025, the Ninth Circuit declined to hear the case en banc. See Samson Tug & Barge Co. v. International Longshore & Warehouse Union, Nos. 24-5730, 24-6017, 2025 U.S. App. LEXIS 25386 (9th Cir. Sept. 30, 2025). See November 2025 Update. Samson Tug filed a petition for certiorari with the United States Supreme Court, describing the situation as follows: “This case arose from the International Longshore and Warehouse Union, Alaska Longshore Division; and ILWU, Unit 222’s (collectively ‘ILWU’), attempt to force a family-owned shipping company, Samson Tug and Barge Co., Inc. (‘Samson’), to replace its work force with ILWU members. ILWU applied brazen coercion upon Samson’s landlord to evict Samson from the property if Samson did not hire ILWU labor.” On May 4, 2026, the Supreme Court declined to grant a writ of certiorari. Samson Tug & Barge Co. v. International Longshore & Warehouse Union, Alaska Longshore Division, No. 25-1052, 2026 U.S. LEXIS 2004 (May 4, 2026). See June 2026 Update. In separate litigation, the Ninth Circuit addressed the jurisdictional dispute between the International Longshore and Warehouse Union (ILWU) and the International Association of Machinists and Aerospace Workers (IAM) with respect to maintenance work at SSA Terminals’ Terminal 5 at the Port of Seattle, Washington. The National Labor Relations Board assigned the work to IAM-represented mechanics, and the ILWU filed a grievance against SSA Terminals under its collective bargaining agreement, seeking the value of the work assigned to IAM. An administrative law judge awarded the ILWU damages for the lost opportunity so that SSA Terminals would have to pay twice for the work, and SSA Terminals filed an unfair labor practice charge to which the ILWU claimed its conduct was immunized by the work-preservation defense. An administrative law judge rejected the defense, and the NLRB ordered the ILWU to cease and desist from pursuing the maintenance work at Terminal 5. The Ninth Circuit reversed, holding that its decision in Kinder Morgan allowed the ILWU to raise the work-preservation defense. Judge Miller, who wrote the decision for the Ninth Circuit, also concurred to suggest that the Ninth Circuit should reconsider Kinder Morgan en banc because it was wrongly decided. See International Longshore and Warehouse Union v. National Labor Relations Board, Nos. 23-632, 23-658, 23-780, and 23-793, 2025 U.S. App. LEXIS 15101 (9th Cir. June 18, 2025) (petitions for rehearing en banc were filed by the National Labor Relations Board and the International Association of Machinists and Aerospace Workers). On December 16, 2025, the Ninth Circuit agreed to a rehearing en banc in International Longshore and Warehouse Union v. National Labor Relations Board, Nos. 23-632, 23-658, 23-780, and 23-793, 2025 U.S. App. LEXIS 15101 (9th Cir. Dec. 16, 2025). See January 2026 Update. On August 20, 2026, the Ninth Circuit issued its en banc decision and ruled: “Allowing the ILA work-preservation defense to defeat a § 8(b)(4)(D) charge for failing to abide by a § 10(k) decision would frustrate the scheme Congress enacted to conclusively resolve jurisdictional disputes. Accordingly, we hold that ILA work-preservation is not a defense to an unfair labor practice charge under § 8(b)(4)(D) and overrule the passage in Kinder Morgan that states otherwise.” Therefore, the challenge of the ILWU to the decision of the NLRB was denied. International Longshore and Warehouse Union v. National Labor Relations Board, Nos. 23-632, 23-658, 23-780, and 23-793, 2026 U.S. App. LEXIS 25268 (9th Cir. Aug. 20, 2026) (Christen).
The Update has reported the developments in the extensive litigation in Louisiana brought by coastal Parishes against energy companies seeking to recover restoration costs for loss of land along the Louisiana Gulf Coast allegedly resulting from production practices carried out by the energy companies going back to World War II. The Parishes brought suit in Louisiana state court, and the energy companies removed the cases to federal court based on the Federal Officer Removal Statute. The district courts remanded most of the cases to state court, and one case resulted in a verdict against Chevron in the state court of $744.6 million in damages. After the Supreme Court’s decision on April 17, 2006, upholding removal jurisdiction under the Federal Officer Removal Statute (see May 2026 Update), the lower courts are faced with application of the decision of the Supreme Court to determine whether the Coastal Zone cases will proceed in state or federal court. On August 24, 2026, the Fifth Circuit issued a per curiam decision in the case in which the verdict was issued by the state jury. The Fifth Circuit vacated the order of remand to the state court but declined to decide the merits of whether the case was removable. Instead, the court remanded the case to the federal district court (Eastern District of Louisiana) to decide the issue. However, the Fifth Circuit enjoined all proceedings in the state court for 60 days unless extended or terminated by the Fifth Circuit. See Louisiana State, ex rel. Murrill v. Chevron USA Holdings, Inc., No. 23-30336, 2026 U.S. App. LEXIS 25604 (5th Cir. Aug. 24, 2026).
On August 25, 2026, the D.C. Circuit denied challenges of environmental groups to the approval of the Federal Energy Regulatory Commission of a liquified natural gas export terminal on the Calcasieu Ship Channel in Cameron Parish, Louisiana (along with a natural gas pipeline running from East Texas to the terminal. See For a Better Bayou v. Federal Energy Regulatory Commission, No. 24-1291, 2026 U.S. App. LEXIS 25651 (D.C. Cir. Aug. 25, 2026) (Ginsburg).
The July 2023 Update reported that the Fifth Circuit affirmed the decision of Judge Milazzo of the United States District Court for the Eastern District of Louisiana that the State of Louisiana failed to establish standing to challenge a National Marine Fisheries Service rule that required certain shrimping vessels in Louisiana waters to use turtle excluder devices (the rule was estimated to affect 1,047 vessels in the Gulf of Mexico with an aggregate loss in gross revenue of about $2.29 million in addition to the cost of purchasing the TEDs, which was approximately $1.36 million). See Louisiana State v. National Oceanic & Atmospheric Administration, No. 22-30799, 2023 U.S. App. LEXIS 14917 (5th Cir. June 15, 2023) (Wilson). On August 28, 2026, the Fifth Circuit rejected the challenge of the Louisiana Shrimp Association and three individuals active in the shrimping industry to the rule under the Administrative Procedure Act and the Constitution, holding that the National Marine Fisheries Service “reasonably explained its decision and backed it with substantial evidence, and its reasoning accounts for all relevant factors.” See Louisiana Shrimp Association v. Lutnick, No. 25-30408, 2026 U.S. App. LEXIS 26414 (5th Cir. Aug. 28, 2026) (Elrod).
The July 2026 Update reported that the cruise line filed a notice of interlocutory appeal to the Eleventh Circuit from the decision in the United States District Court for the Southern District of Florida that a passenger’s pleading the case against the cruise line (in connection with the placement of cameras in staterooms of passengers) as a sexual assault dispute resulted in denial of arbitration in accordance with the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act. Doe v. Royal Caribbean Cruises, Ltd., No. 1:24-cv-23953, 2026 U.S. Dist. LEXIS 88685 (S.D. Fla. Apr. 22, 2026) (Shaw-Wilder), recommendation adopted, 2026 U.S. Dist. LEXIS 115394 (S.D. Fla. May 26, 2026) (Gayles). On August 28, 2026, the Eleventh Circuit denied the plaintiff’s motion for summary affirmance and request to expedite the appeal and agreed that her motion to dismiss the appeal for lack of jurisdiction would be carried with the case. See Doe v. Royal Caribbean Cruises, Ltd., No. 26-11899 (11th Cir. Aug. 28, 2026) (per curiam).
On the longshore front . . .
From the federal appellate courts
John Francis Fitzpatrick injured his foot and ankle while working for General Dynamics on December 15, 2015, and his employer paid compensation for temporary total disability. Fitzpatrick claims that he subsequently sustained a spinal injury that resulted from a medical examination of the original foot injury. General Dynamics disputed the back injury, and a formal hearing was held by Administrative Law Judge Alford, who ruled that Fitzpatrick did not establish any injury for which he had not been compensated. ALJ Alford denied Fitzpatrick’s Motion for Reconsideration, and Fitzpatrick appealed the decisions to the Benefits Review Board. Although his argument was somewhat unclear, Fitzpatrick asserted that the BRB (and ALJ) lacked subject matter jurisdiction because the claim was initiated by the employer (LS-202) rather than the form he submitted (LS-201). Before the BRB could issue a decision, Fitzpatrick filed a Petition for Review in the Ninth Circuit, which was dismissed for lack of jurisdiction. Fitzpatrick sought reconsideration as well as sanctions against Matthew Boyle, Mark Reinhalter (DOL attorneys), Thomas O. Shepherd (BRB Clerk), and employer counsel Laughlin, Falbo, Levi, and Moresi. The Ninth Circuit denied the motions. The BRB affirmed the decision of ALJ Alford and denied Fitzgerald’s motion for reconsideration. The BRB rejected the assertion that only the claimant has the right to provide notice of his injury and that the OWCP erred by creating a claim number based on the employer’s notice of injury (noting that the employer is not only permitted to give notice to the OWCP but is required by the LHWCA to give notice). The Board added that when the employer files the notice, the ALJ has “full power and authority to hear and determine all questions in respect of such claim” under Section 19(a) of the LHWCA. Fitzpatrick then filed a Petition for Review with the Ninth Circuit, naming the Department of Labor but not the employer. Fitzpatrick argued that the Board “failed to follow 20 C.F.R. § 802.211(b) regarding initial processing of a petition for review,” and he sought modification of his claim under Section 22 of the LHWCA. He presented his argument in a Motion for Summary Disposition. The Ninth Circuit held that the BRB did not err in determining that the OWCP and ALJ had jurisdiction over Fitzpatrick’s claim for benefits, citing the provisions of the LHWCA and the Cruz decision from the Ninth Circuit that the OWCP “has sole authority to investigate a claim and hold a hearing, and must either reject the claim or make an award.” Finding Fitzpatrick’s arguments that the BRB failed to address the jurisdiction or to comply with the regulations to be meritless, the Ninth Circuit denied Fitzpatrick’s motions and affirmed the Benefits Review Board. Fitzpatrick filed a petition for panel rehearing and rehearing en banc.
Concluding that the attorney representing the claimant in a claim for benefits under the Black Lung Benefits Act was entitled to attorney fees at the hourly rate of $325 based on his qualifications and experience, the Sixth Circuit agreed with the requested award of $845 pursuant to Section 28 of the LHWCA.
Central’s last argument against legal pneumoconiosis is that the ALJ and BRB were “incorrect[]” in finding that Green and Habre’s opinions were well-reasoned. Opening Br. at 26–27. Central specifically asserts that their opinions, which stated that Estudillo had legal pneumoconiosis, were too general and conclusory.
At the outset, Central’s mere disagreement with the ALJ is not a basis for us to reverse the ALJ and BRB. Our review is “limited,” Hobet Mining, LLC, 783 F.3d at 504, and “we do not reweigh conflicting evidence, make credibility determinations, or substitute our judgment for the ALJ’s, particularly in a ‘battle of the experts’ over medical opinion evidence.” Clinchfield Coal Co., 164 F.4th at 348 (citing Lawson, 140 F.4th at 146–47). Especially where there are two sets of conflicting medical opinions, we would expect that the non-prevailing party would disagree with the ALJ’s decision against their experts. However, such a “battle of the experts” is the type of dispute that we are not empowered to resolve differently from the ALJ, even if we disagree. See Cochran, 718 F.3d at 322, 324 (“We are not at liberty to ‘substitute our judgment for that of the ALJ’ but rather must ‘defer to the ALJ’s evaluation of the proper weight to accord’ the evidence, including ‘conflicting medical opinions.’” (quoting Harman Mining Co., 678 F.3d at 310)).
From the federal district courts
Edward Montelongo claims that he was exposed to asbestos while employed in various positions at Avondale Shipyards (now Huntington Ingalls) in New Orleans, Louisiana between 1957 and 196o, resulting in his development of asbestosis, traction bronchiectasis, and other related health problems. He also claims that he was exposed to asbestos while employed from 1961 to 1965 at the premises of Kaiser Aluminum in Chalmette, Louisiana. Montelongo brought this suit against Huntington Ingalls/Avondale and other defendants in state court in Orleans Parish, Louisiana, and Huntington Ingalls removed the case to federal court based on the Federal Officer Removal Statute. Montelongo moved for partial summary judgment that the shipyard could not rely on the government contractor defenses in Boyle and Yearsley, and Judge Fallon agreed with respect to the claims asserted against the shipyard--failure to warn and to prevent the spread of asbestos. He reasoned that the shipyard’s contracts with the government did not show government regulations requiring that the shipyard refrain from warning employees about hazards of asbestos, that the contracts did not provide a specification regarding asbestos usage and storage, and the negligence occurred “wholly outside” the contracts. The shipyard and its insurer then moved for summary judgment on Montelongo’s claims for intentional tort, fraud, and non-intentional torts. The defendants argued that the intentional tort claim failed because Montelongo adduced no evidence that the shipyard consciously desired that Montelongo contract asbestosis or knew that his asbestosis was substantially certain to follow from the shipyard’s actions. Judge Fallon agreed that the evidence was insufficient, reasoning that Montelongo did not show that the shipyard consciously intended to harm him or that his injury was inevitable. Therefore, Judge Fallon granted summary judgment on the intentional tort claim. He also granted summary judgment that Montelongo failed to prove that the shipyard acted with fraudulent intent. He stated that evidence that the shipyard was aware of the risks associated with exposure to asbestos and failed to warn Montelongo did not raise a genuine issue of fact with respect to fraud. As for the non-intentional tort claims against the shipyard, Judge Fallon noted that the Louisiana Workers’ Compensation Act was amended in 1952 to provide the exclusive remedy against an employer for a workplace occupational disease claim arising out of the course and scope of employment. As Montelongo’s exposure claim arose after the 1952 Amendment, the shipyard was immune from the non-intentional tort claims. The issue was different, however, with respect to the claims against the insurer for the shipyard’s executive officers. The state statute was not amended to provide immunity for claims against executive officers until 1976. As the version of the state statute that was in effect at the time of Montelongo’s exposure did not afford immunity to executive officers, Judge Fallon declined to dismiss the non-intentional tort claims against the insurer for the executive officers. Finally, defendant Foster Wheeler moved for summary judgment based on the fact that it has no record of manufacturing, selling, or supplying furnaces to Kaiser (Montelongo was not exposed to any Foster Wheeler products during his employment at the shipyard). As Montelongo testified and produced testimony from others that there were Foster Wheeler furnaces in the Metal Products department at Kaiser when Montelongo worked, Judge Fallon declined to grant summary judgment to Foster Wheeler.
Adrian Lowery was employed as a longshore worker by SSA Terminals to assist in cargo operations on the MSC GIULIA, which was docked at SSA Terminals in the Port of Oakland, California. He claims that he was injured while climbing a ship ladder through a hatch when an unsecured handhold railing folded back on top of him, causing him to fall. Lowery brought this suit in California federal court against parties that he claimed were the owner, charterer, and operator of the MSC GIULIA, and the parties filed motions to exclude their opponents’ experts. The defendants challenged the qualifications of Captain Katharine Sweeney on the grounds that it has been nearly 20 years since she served as an officer on a vessel, that she lacks experience on foreign-flagged vessels, and that she has limited stevedoring experience. Magistrate Judge Tse was not persuaded as the defendants did not establish any change in relevant policies in the past two decades or why stevedoring experience was necessary for her opinions. Magistrate Judge Tse also rejected the argument that Captain Sweeney’s opinions were not reliable (because she did not visit the vessel or take measurements) because they were based on her experience and knowledge of industry standards and documentary evidence of the incident. The defendants objected to Captain Sweeney’s opinions with respect to design error, human factors analysis, the credibility of witnesses, and issues of law. Magistrate Judge Tse did not believe that Captain Sweeney gave opinions on design that were beyond her experience. However, the Judge believed that opinions on realization of the risk to workers and foreseeing the risk crossed over into human factors (she could testify as to industry customs and standards but not as to what a crewmember would have seen and how the crewmember should have reacted). Magistrate Judge Tse declined to allow testimony on credibility of witnesses but allowed testimony on the norms regarding the turnover duty, answering that the testimony did not impermissibly opine as to the duties owed. The defendants challenged the opinions of Fred Gilliam as an expert on longshore customs and practices, but Lowery cited his experience in a range of longshore positions, including 2o years as a walking boss and former president of the walking bosses’ union. Magistrate Judge Tse agreed that he could opine on longshore practices and customs but declined to allow him to testify as to the condition of the latch and any alleged defect as beyond the scope of his qualifications. Magistrate Judge also rejected an argument that Gilliam’s testimony about work practices was no more than ipse dixit without methodology, answering that it was based on Gilliam’s work experience. Lowery moved to exclude the opinions of Arthur Faherty, who has decades of experience on vessels as a marine engineer, including five years as a chief engineer responsible for crew safety and thirty years as a consultant. He was allowed to testify as to industry policies, procedures, and customs; what the requirements for the vessel’s log are and how safety fencing is intended to be used; and to counter Lowery’s testimony based on photo and video evidence.
From the state courts
Longshore worker hired by a stevedore from a staffing company was a borrowed servant of the stevedore, and his exclusive remedy against the stevedore and a co-employee, under state law and the LHWCA, was workers’ compensation; Scott v. Maxwell, No. STCV23-01195, 2026 Ga. State LEXIS 1686 (Ga. Super. Apr. 28, 2026) (Coolidge), appeal dismissed, No. A26A2234 (Ga. App. June 24, 2026).
Seaonus Stevedoring is a cargo operator that offers stevedoring and warehousing services in the Port of Savannah. Seaonus hires professional day laborers to perform work, and it engaged Taylor Scott from a staffing company to perform work by a Work Ticket that stated that Scott was working under the direction and control of Seaonus (Scott confirmed that he was working under the direction and control of Seaonus). Scott alleges that he was injured by a forklift driven by Seaonus employee Tajkhari Maxwell, and Scott was paid compensation benefits under the Georgia workers’ compensation statute. Scott brought this suit in state court in Chatham County, Georgia against Maxwell and Seaonus, and the defendants moved for summary judgment that they were immune from suit under the Georgia statute and under the LHWCA. Judge Coolidge first addressed Georgia law and held that Scott was a borrowed servant of Seaonus at the time of the incident and that the state compensation statute provided his exclusive remedy against Seaonus and Maxwell. Alternatively, Judge Coolidge concluded that the factors enunciated by the Eleventh Circuit to determine whether a worker is a borrowed servant under the LHWCA were satisfied, including the fact that Seaonus had the right to, and did, control Scott in the manner and method of his work. Accordingly, Judge Coolidge granted summary judgment dismissing Scott’s suit against Seaonus and Maxwell. Scott filed a notice of appeal, but the Georgia Court of Appeals dismissed the appeal for lack of jurisdiction because it was filed 31 days after entry of the court’s judgment.
And on the maritime front . . .
From the federal appellate courts
Juan José Lantigua-Núñez, a citizen of the Dominican Republic, claims that agents of the Coast Guard used unlawful force when they fired gunshots at a vessel he was helming, resulting in wounds to his left arm. A Coast Guard helicopter and cutter approached the “go-fast vessel” in international waters off the coast of Puerto Rico and fired warning shots. When the vessel failed to stop, the Coast Guard fired at the engine to disable it. Two of the rounds fired from the helicopter struck Lantigua-Núñez. He fell to the deck and released the accelerator, causing the vessel to stop. Lantigua-Núñez filed an administrative claim under the Federal Tort Claims Act, and when that claim was denied, he brought this suit against the Coast Guard and the Coast Guard officers in federal court in Puerto Rico. He asserted constitutional claims against the officers and a tort claim against the United States under the “law enforcement proviso” of the FTCA. The United States moved to dismiss the suit on the ground that the claim was maritime and fell under the jurisdiction of the Suits in Admiralty Act, and the district court agreed that it was improperly brought under the FTCA. The district court declined to allow Lantigua-Núñez to amend his complaint to allege a claim under the Suits in Admiralty Act because his claim would have been time-barred. Lantigua-Núñez appealed to the First Circuit, arguing that the law enforcement provision of the FTCA provides jurisdiction against law enforcement officers regardless of location and that the SIAA does not supplant the FTCA for unlawful police conduct. Writing for the First Circuit, Judge Gelpí held that Lantigua-Núñez’s claim sounds in admiralty and the SIAA provides the remedy. Therefore, the express exclusion in the FTCA for claims for which a remedy is provided in the SIAA was fatal to his assertion. It was undisputed that the incident occurred on navigable waters, but Lantigua-Núñez argued that the aerial attack in the course of a law enforcement operation did not constitute maritime activity. Judge Gelpí answered that this was the type of “hypergeneralization” about which the Supreme Court warned in Grubart, noting that Lantigua-Núñez glossed over the involvement of multiple water vessels and the Coast Guard’s “domain over maritime activity.” Judge Gelpí added that it “would be impossible to find an agency of our government with a closer relationship to maritime activity” than the Coast Guard. Finally, Judge Gelpí held that Lantigua-Núñez’s argument that the SIAA did not provide a remedy because the claim was time-barred did “not hold water,” reasoning that he “had a proper means to pursue his remedy (the SIAA), he just failed to timely file that claim. And he, of course, cannot now turn around and say that his failure to file a timely SIAA claim is actually the reason that the SIAA doesn’t apply.” Therefore, the First Circuit affirmed the dismissal of the suit with prejudice.
This suit arises from a deal between SLT Imports and non-party Krishna Food Corp. by which SLT Imports provided financing (through a bank) so that Krishna Food (which had “creditworthiness issues”) could purchase food from an Indian supplier to be shipped to Krishna Food in New Jersey. The arrangement provided that SLT Imports would be the named consignee on the bills of lading and that the carrier would not release the cargo to Krishna Food without an endorsed bill of lading. SLT Imports contracted with SAR Transport for the carriage of the cargo. SAR Transport is an Ocean Transport Intermediary carrier based in Mumbai, India that uses other companies’ vessels for international shipments. The bills of lading that were issued by SAR Transport listed SLT Imports as the consignee and specified that the cargo could be released to Krishna Food only upon surrender of an endorsed bill of lading. However, SAR Transport caused the cargo to be released to Krishna without requiring that Krishna Food provide endorsed bills of lading. Instead, SAR Transport accepted letters of indemnity from Krishna Food promising to indemnify SAR Transport for releasing the cargo without the surrender of the bills of lading. Krishna Food did not pay SLT Imports for the cargo (more than a million dollars). As Krishna Food was insolvent, SLT Imports sought to collect from SAR Transport. SLT Imports originally brought this action against SAR Transport in federal court in California, and the suit was transferred to the federal court in New Jersey. SLT Imports alleged claims for fraud in the execution of a maritime contract and, alternatively, breach of a maritime contract under the Carriage of Goods by Sea Act. SAR Transport moved for judgment on the pleadings that the case was governed by COGSA and was time-barred by COGSA’s one-year statute of limitations. Judge Padin agreed, reasoning that SLT Imports’ attempt to creatively plead around COGSA’s limitation by alleging fraud in the execution of the contract was unpersuasive: “Plaintiff, at most, pleads that Defendant knew it would breach the terms of the bills of lading when it issued them.” But there was no claim of misrepresenting the nature of the contract so as to allege a fraud claim. Accordingly, the claim was governed by COGSA. SLT Imports next alleged that the statute of limitations was not applicable because there was an unreasonable deviation, and the bills of lading were void ab initio. Judge Padin disagreed, answering that SLT Imports at most alleged a misdelivery to which the one-year limitation applied. Finally, Judge Padin found no inequitable conduct that would estop the carrier from relying on the one-year limitation (this was not a case where the carrier lulled the plaintiff into waiting to bring the suit). Therefore, Judge Padin dismissed the suit with prejudice. See August 2024 Update.
SLT Imports moved for reconsideration, arguing that Judge Padin erred by not granting leave to amend to assert claims for fraud in the execution and fraud in the inducement and by looking to COGSA for the relevant statute of limitations rather than state law. Judge Padin declined to grant the request for reconsideration, holding that the fraud pleading would be futile. She explained that a party claiming fraud in the execution must show excusable ignorance of the contents of the writing; however, SLT Imports alleged that both it and SAR Transport were aware of the terms of the bill of lading but that SAR Transport knew it would breach the terms when it issued the bills of lading. As for the claim for fraud in the inducement, Judge Padin reasoned that the misrepresentation must be extraneous to the agreement. However, the misrepresentation asserted by SLT Imports is that SAR Transport stated that it would comply with the terms of the contract when it knew that it would not. As that was nothing more than an intentional breach, an amendment for fraud in the inducement would also be futile. In the absence of viable state-law claims, the case was properly dismissed based on COGSA’s one year statute of limitation, and Judge Padin denied the motion for reconsideration. SLT Imports filed a notice of appeal to the Third Circuit on March 25, 2025. See May 2025 Update.
The Third Circuit began by holding that SLT Imports’ claim for fraud in the execution failed on the merits. Writing for the Third Circuit, Judge Porter noted that SLT Imports at times conflated fraud in the inducement with fraud in the execution but clarified that it was relying on the fraud in the execution theory. Judge Porter agreed with Judge Padin that SLT did not allege that it was duped into thinking that the bills of lading were any different than what it thought they were. Rather, SLT Imports asserted that SAR Transport misled SLT Imports by agreeing to release the cargo only upon presentation of an endorsed bill of lading despite its secret intention to breach that obligation. Judge Porter explained that the essence of this complaint was not fraud in the execution but breach of contract, stating that “a plaintiff cannot say that a defendant defrauded him just by reneging on a contractual promise.” Judge Porter concluded that the pleading “appears to have been an artful attempt to dodge the COGSA limitations period.” Besides failing on the merits, Judge Porter held that the fraud claim failed for another reason—it is time barred by COGSA. SLT Imports offered three reasons why the COGSA limitation should not preclude its claim. First, it argued that SAR Transport cannot rely on the COGSA defense when it defrauded SLT Imports before any carriage of goods (noting that COGSA applies from tackle to tackle). Judge Porter did not have to address whether the fraud fell within the coverage of COGSA because the court had already held that the fraud was not properly alleged and that the complaint was, in essence, the failure to properly deliver the cargo, which fell “squarely within COGSA’s provisions.” Second, SLT Imports argued that SAR Transport was equitably estopped from asserting the COGSA defense by its misconduct in secretly intending to deliver the cargo without waiting from the endorsed bill of lading. Judge Porter rejected the argument as the alleged misconduct caused no detrimental reliance and had no effect on the failure to bring the suit within one year. Third, SLT Imports asserted that the misdelivery was an unreasonable deviation that vitiated the limitation defense. Judge Porter answered that multiple courts have held that nondelivery or misdelivery of cargo is not a deviation or quasi-deviation, and the Third Circuit agreed to “join our sister circuits and ‘reaffirm the rule that misdelivery of cargo is not a deviation that bars resort to the protections of COGSA.’” Judge Porter added that, even if the misdelivery were considered to be a deviation, it would not vitiate the limitation defense because the defense “confines the parties’ rights to bring suit; it is unrelated to the allocation of risk for conduct on the high seas.” Accordingly, the Third Circuit affirmed the dismissal of the suit without leave to amend.
John F. Curran III considered purchasing the Saltillo Marina located on the Tennessee River, but he discovered that the seller, Carl Fronabarger, had abandoned it and the marina had broken free from its moorings and drifted downriver. Curran allegedly salvaged the fuel tanks to avoid spillage of fuel, and he sought a salvage award from Fronabarger. Fronabarger refused to pay, and Curran filed a lien against the marina’s anchorage and moorings and refused to honor a check that he had issued to a crew member (Dustin Scott) who helped him with the alleged salvage. The State of Tennessee indicted Curran for filing a false lien for his salvage services (and for passing a worthless check), and Curran filed this suit in federal court in Tennessee against the State of Tennessee, Fronabarger, the presiding judge, and the prosecuting attorney, asserting that the State lacked subject matter jurisdiction to prosecute him for actions taken in connection with securing compensation for salvage services (arguing that his services on navigable waters fell squarely with the federal courts’ exclusive admiralty jurisdiction). He sought an injunction to halt the criminal proceedings, and Magistrate Judge York recommended denial of his request. Judge Anderson agreed with the recommendation for denial of the request for a preliminary injunction because the Younger abstention doctrine prevented the federal court from interfering with the state criminal prosecution. Curran filed an interlocutory appeal to the Sixth Circuit, citing the exception to abstention when the plaintiff challenges a statute that is flagrantly violative of express constitutional prohibitions. Curran argued that “Tennessee lacks jurisdiction to prosecute him for actions taken in connection with securing compensation for ‘a salvage operation [that] took place on federal property’—i.e., the Tennessee River—because such conduct falls squarely within the federal court’s exclusive admiralty jurisdiction.” The Sixth Circuit disagreed, responding that Curran could not show that Tennessee’s fraudulent lien law flagrantly violated express constitutional prohibitions and that the extension of admiralty jurisdiction did “not necessarily preclude a state from exercising concurrent jurisdiction with the federal government over criminal acts committed within its territorial waters.” Concluding that Curran did not show a likelihood of success on the merits, the Sixth Circuit affirmed the denial of an injunction. See October 2024 Update.
With the side issues in the background, Fronabarger moved for judgment on the pleadings, arguing that Curran could not establish his claim for voluntary salvage services (that gave rise to the lien that Curran filed on Fronabarger’s property). Magistrate Judge York noted that, in order to establish a salvage claim, Curran would have to establish a maritime peril, voluntary service, and success. Fronabarger argued that there was no basis for the salvage claim because Curran was convicted on the charge of filing a lien for his salvage efforts with no reasonable or legal basis. Reasoning that the conviction for violating the false lien statute prevented Curran from arguing that he had a reasonable basis or legal cause for the salvage claim, Magistrate Judge York recommended that the case be dismissed on the pleadings. Magistrate Judge York also recommended that Curran’s motion for an extension of time to respond (on the ground that he was being detained by the Tennessee Department of Corrections and did not have a law library with modules for maritime law) be denied because the materials would not cure the “fatal issue in this case—that Defendant had been convicted for violating Tennessee’s false-lien statute, and with no reasonable basis for filing the lien.” Curran objected to the recommendations, but Judge Anderson agreed that Magistrate Judge York correctly found that Curran’s conviction prevented him from arguing that he had a reasonable basis or legal cause for the salvage claim. Curran argued that Magistrate Judge York failed to correctly apply “over 100 years of federal maritime law,” but Curran did not address the finding that that his conviction precluded a finding of a reasonable basis for the salvage claim (Curran denied being convicted of a crime, but Judge Anderson pointed out that “public records show that he is a convicted felon and is on parole until 2028”). Judge Anderson added that Curran’s “complaints about the proof in his criminal trial in Hardin County are irrelevant.” Judge Anderson also agreed with the denial of the motion for an extension, noting that Curran did, in fact, file a response, and, anticipating an appeal, Judge Anderson stated that an appeal would not be taken in good faith if Curran requested that he be allowed to appeal in forma pauperis. Curran did file a notice of appeal on August 12, 2025. See October 2025 Update.
During the pendency of the appeal of the salvage case, the Tennessee Court of Criminal Appeals heard the appeal of Curran’s convictions for passing a worthless check and filing a false lien. Curran raised several arguments in support of his appeal, including that the State failed to establish territorial jurisdiction because the offenses took place on federal property and the circuit court erred by denying the motion of defense counsel to withdraw when the attorney explained that he lacked knowledge and experience in maritime law and admiralty jurisdiction. For the first issue, Curran argued the alleged criminal offenses took place on the Tennessee River and its flowage easements, which are the exclusive property of the TVA (and under the exclusive jurisdiction of the Coast Guard). The appellate court rejected the argument. Writing for the Court of Criminal Appeals, Judge Hixson explained that the deed linked to the UCC financing statements concerned property located in Hardin County, Tennessee and specifically excluded any TVA land. The deed and the lien filed by Curran were recorded with the Hardin County Register of Deeds. The check was passed by Curran in Hardin County. Therefore, Judge Hixon concluded that the offenses occurred in Hardin County beyond a reasonable doubt. As to the motion to withdraw, the appellate court considered the argument waived because Curran’s motion for new trial was withdrawn before a ruling was issued. Rejecting all of Curran’s other arguments, the appellate court affirmed the convictions. See December 2025 Update.
On July 27, 2026 the Sixth Circuit affirmed the dismissal of Curran’s civil suit. Beginning with the claims against the state defendants, the Sixth Circuit explained that the Eleventh Amendment barred suits against states in federal court unless the state has waived sovereign immunity or sovereign immunity was overridden by Congress. Curran argued that the state judge was not entitled to judicial immunity because the judge acted in a non-judicial capacity or in the absence of all jurisdiction. Curran alleged that the state lacked jurisdiction to prosecute him for actions taken in connection with pursuing a maritime salvage claim on federal property—the Tennessee River and its flowage easements—which fall within the exclusive admiralty jurisdiction of the federal courts. The Sixth Circuit answered that Curran was not prosecuted for actions taken over navigable waters, but for recording a false lien and passing a worthless check in Hardin County, Tennessee. Accordingly, the judge was judicially immune from suit for money damages. The prosecutor was also entitled to immunity for actions associated with the judicial phase of the criminal process. Finally, the Sixth Circuit rejected Curran’s challenge to the dismissal of his claim against Fronabarger based on collateral estoppel because he failed to brief the argument.
Schrade Jones and Carter Gilliam were bowfishing at night in Lake Guntersville, Alabama when their vessel allided with an unmarked duck blind. Jones and Gilliam brought this suit in federal court in Alabama against the United States and the Tennessee Valley Authority under the Suits in Admiralty Act, alleging that the defendants negligently and wantonly failed to remove, warn of, or mark the duck blind. The defendants moved to dismiss the complaint, arguing that the decisions on warning, removing, and marking are discretionary and fall within the discretionary function exception to the waiver of sovereign immunity in the SIAA. Jones and Gilliam responded that engrafting a discretionary function exception onto the SIAA violates separation of powers and that the cases cited by the defendants in support of the discretionary function exception were based on “bad law.” Judge Burke began by noting that the court had admiralty jurisdiction over the suit and that maritime law governed the substantive issues. He then agreed that the SIAA does waive sovereign immunity for suits against the United States and any federally owned corporation and that the claims could only proceed with the waiver of sovereign immunity in the SIAA. Although the Eleventh Circuit has clearly applied the discretionary function exception in actions brought under the SIAA, Jones and Gilliam spent almost 29 pages arguing that the discretionary function exception did not apply. Judge Burke declined to overrule the Eleventh Circuit and proceeded to apply the discretionary function exception. The exception applies if the conduct involves an element of judgment or choice, and conduct involves an element of judgment or choice unless “a federal statute, regulation, or policy specifically [prescribes] a course of action embodying a fixed or readily ascertainable standard.” The plaintiffs failed to identify any statute, regulation, or policy that required marking, warning, or removal with respect to a privately owned structure located outside of the commercial navigation channel. Instead, they argued that duties imposed by the general maritime law and by Alabama case law on negligence were sufficient. However, Judge Burke answered that neither maritime law nor Alabama law specifically prescribed a course of action embodying a fixed or readily ascertainable standard. Therefore, the plaintiffs failed to satisfy the first requirement to overcome the discretionary function exception. Judge Burke added that the second element was not satisfied because the decision not to mark, warn, or remove is the type of decision that the exception is designed to shield. As the United States and the TVA were entitled to sovereign immunity, Judge Burke dismissed the complaint. See April 2025 Update.
Jones and Gilliam filed a notice of appeal to the Eleventh Circuit and sought initial hearing en banc, requesting that the full court overrule its decision in Williams v. United States that incorporated into the Suits in Admiralty Act the discretionary function exemption contained in the Federal Tort Claims Act. The en banc Eleventh Circuit declined to grant initial hearing en banc, but Chief Judge Pryor wrote to explain the reason for the denial. He succinctly stated: “Williams was wrong the day we decided it. Nothing in the text of the [SIAA] even remotely suggests that the waiver of sovereign immunity effectuated by section 30903(a) is subject to a discretionary function exception. And we have no business ‘rewrit[ing] the statute’ to supply exceptions that Congress did not provide.” He reasoned that the decision “reflects a fundamental misunderstanding of our constitutional structure” and that the power to waive the federal government’s immunity “is Congress’s prerogative, not ours.” Turning to the appeal of Jones and Gilliam, Chief Judge Pryor stated: “In an appropriate case, we should overrule Williams.” He agreed that this might be the appropriate case, but that there were reasons to submit the appeal to a panel before consideration by the full court (a panel of the appellate court might conclude that the discretionary function exception did not apply on its facts or that the TVA otherwise waived sovereign immunity). Accordingly, Chief Judge Pryor concluded: “If the panel holds that Williams controls, the many problems with Williams would provide strong grounds to grant rehearing en banc and overrule it. Until then, we should let the ordinary appellate process run its course.” See November 2025 Update.
Note that the issue whether courts should apply the discretionary function exception from the FTCA in claims brought under the SIAA was presented to the Ninth Circuit in Fiedler v. United States, arising out of the fire on the CONCEPTION that killed 34 passengers and crew, and the Ninth Circuit continued to apply the exception in dismissing the suit against the United States. See August 2026 Update.
After declining to grant an initial en banc hearing, a panel of the Eleventh Circuit held that Judge Burke did not err in continuing to apply the court’s Williams decision. Writing for the panel, Judge Kidd held that binding precedent in the Eleventh Circuit required application of the discretionary function exception and that the discretionary function exception shielded the defendants (the Coast Guard, Corps of Engineers, and TVA) from liability under the Suits in Admiralty Act. The Eleventh Circuit reached a different result in connection with the suit against the TVA under the “sue and be sued” clause in the TVA Act. Judge Kidd explained that the SIAA provides the exclusive remedy for claims that are cognizable under the SIAA. However, the holding that the claims were barred by the discretionary function exception meant that the SIAA was not exclusive and did not bar suit under another jurisdiction conferring statute—the TVA Act that is not limited by a discretionary function exception. Therefore, the Eleventh Circuit reversed the dismissal of claims against the TVA. Judge Kidd also penned a concurring opinion (joined by Judge Rosenbaum), in which he explained his belief that the court was bound by its precedents with respect to the discretionary function exception that was judicially inserted into the SIAA. However, he suggested that the court should hear the case en banc to consider the continuing viability of the Williams decision, and the plaintiffs filed a suggestion for en banc rehearing.
Hunter Marine Group and Michael Pittman are owner and bareboat charterer of the ADALYN, a 38-foot commercial workboat weighing less than 100 gross tons. Hunter Marine entered into a contract to provide the ADALYN and the tug JOHN D to Encore Dredging to assist in dredging on the Alabama River. The ADALYN was carrying eight Encore employees from the DREDGE RANGER, which was working near Monroeville, Alabama, toward a landing just north of the Highway 84 Bridge crossing. The ADALYN ran aground and hit a stationary steel pipe, causing injuries to the employees of Encore. The employees brought suit against Hunter Marine and Encore in state court, and Hunter Marine and Pittman filed this action in federal court in Texas, seeking to limit liability. The employees argued that the ADALYN was a “covered small passenger vessel” that is excluded from the Limitation Act by the 2023 Amendment that was enacted after the CONCEPTION fire. The parties filed cross-motions for summary judgment, and Judge Rosenthal recited the provisions in the Act: “The Act defines a ‘covered small passenger vessel’ as ‘a small passenger vessel . . . that is’ (1) ‘not a wing-in-ground craft; and’ (ii) ‘carrying’ (1) ‘not more than 49 passengers on an overnight domestic voyage; and (11) not more than 150 passengers on any voyage that is not an overnight domestic voyage.’” The Act defines a “small passenger vessel” as “a wing-in-ground craft, regardless of tonnage, carrying at least one passenger for hire, and a vessel of less than 100 gross tons as measured under section 14502 of this title, or an alternate tonnage measured under section 14302 of this title as prescribed by the Secretary under section 14104 of this title—(A) carrying more than 6 passengers, including at least one passenger for hire . . . .” The owner/operator of the ADALYN argued that a small passenger vessel must be both a wing-in-ground craft and a vessel of less than 100 gross tons and that the employees were neither passengers nor passengers for hire. Judge Rosenthal disagreed. She answered that the definition of small passenger vessel is disjunctive, not conjunctive. She explained: “Although the definition uses ‘and’ in between the wing-in-ground and 100-gross-tons criteria, the statute places the article ‘a’ before each vessel description and uses a comma to separate them. This tells the reader that the operative verb in the definition, ‘means,’ is distributive.” As the ADALYN is a vessel of less than 100 gross tons, she turned to the issue of whether the vessel carried more than 6 passengers, including at least one passenger for hire. She reasoned that the issue was whether the employees, directly or indirectly, paid Hunter Marine to travel on the ADALYN (contributed consideration as a condition for the carriage). Hunter Marine argued that it did not contribute consideration for the carriage because it paid a flat, daily rate for usage of the vessel. Judge Rosenthal rejected that assertion with a comparison to a patron who buys a season pass to Disney World or a basketball fan who buys season tickets for the Houston Rockets. She concluded: “The flat, daily fee—‘an economic benefit’—was a condition for the claimants’ carriage on the ADELYN, making them ‘passengers for hire.’” Therefore, Judge Rosenthal held that the Limitation Act did not apply. Finally, the vessel owner/operator argued that the court should not dismiss the federal action seeking a concursus of claims because Rule F should apply, even though limitation of liability was not available. Reasoning that there was no support for that argument in the Limitation Act, Judge Rosenthal dismissed the federal suit and lifted the stay. See January 2026 Update.
The Fifth Circuit affirmed Judge Rosenthal’s decision. The first question was whether the statutory definition of “small passenger vessels” is disjunctive in response to the argument that “small passenger vessels” must be both a wing-in-ground craft and a vessel of less than 100 gross tons. Writing for the Fifth Circuit, Judge Clement answered that the definition is disjunctive, stating that it means “a wing-in-ground craft, regardless of tonnage, carrying at least one passenger for hire” or it means “a vessel of less than 100 gross tons.” As the ADALYN is a vessel of less than 100 gross tons, Judge Clement then addressed whether the vessel carried “more than 6 passengers, including at least one passenger for hire.” She considered the “fundamental question” to be whether the passenger must personally provide the consideration for the transportation. After reviewing the provisions of the statute, Judge Clement answered that the ADALYN’s reading “swaps the ‘fair meaning,’ of the text, our interpretive ‘touchstone,’ for a ‘hyperliteral meaning,’ split from context.” She concluded that Congress did not require personal consideration as a condition for carriage. As Encore paid Hunter Marine to use the vessel, which included transporting its employees, the employees were “passengers for hire,” and the ADALYN was a “covered small passenger vessel” that was excluded from the Limitation Act. Thanks to Michael F. Sturley, Fannie Coplin Regents Chair at the University of Texas School of Law, for bringing this decision to our attention.
Doe and her cabinmate, who were passengers on the CARNIVAL MIRACLE, were returning to their cabin after having a drink in the cabin of other passengers, James and John. James attempted to walk them back to their cabin, but Doe kept hiding from them. At some point, Doe slipped and hit her head, and James gave up on escorting her back to her cabin. Doe ended up in a storage closet where she asserts that she was sexually assaulted by a crew member (Fredy Anggara). Doe does not recall going in or out of the closet, but she believed that the crewmember kept the door to the closet locked and would not let her leave. The cruise line asserted that Doe consented to the interaction and was free to leave the closet. Doe brought this suit against the cruise line, asserting several causes of action. Anggara did not testify, and Doe moved for summary judgment on the claim of false imprisonment based on her statements. The cruise line responded by citing the conclusion in the FBI reports that Doe was free to leave the closet at any time (based on statements of the crewmember during the FBI investigation). Magistrate Judge Torres ruled that the statements of the crewmember were hearsay. As the crewmember was not available to corroborate his statements, there was no evidence to counter Doe’s allegation that she was locked in the closet, and Magistrate Judge Torres consequently granted summary judgment in favor of Doe on the false imprisonment claim. The cruise line moved for summary judgment on Doe’s claim for negligent infliction of emotional distress, and Magistrate Judge Torres agreed that the cause of action applies to mental or emotional harm that is not directly brought about by a physical injury but that manifests itself in physical symptoms. As Doe claimed emotional distress from a physical injury, Magistrate Judge Torres recommended that her claim for negligent infliction of emotional distress be dismissed. See July 2021 Update.
The case was tried to a jury before Judge Williams. At Doe’s request, Judge Williams admitted the FBI notes into evidence (but not the FBI reports). As there were now two accounts of what happened, the cruise line requested that Judge Williams reconsider the partial summary judgment on the false imprisonment claim. Judge Williams declined to reconsider the ruling as it would be prejudicial to Doe at that stage of the trial. FBI special agent Sarah Andreasen testified in the trial, but she was not allowed to discuss her finding that the encounter was consensual and that the government declined to prosecute Anggara because the Reports were excluded. However, Andreasen was allowed to testify about her notes and interviews, including that Doe could not recall if the encounter was consensual and that Anggara believed it was. Doe’s experts testified about the cruise line’s security and the damages suffered by Doe, relying on the FBI reports, but the cruise line was precluded from asking about the reports during cross-examination, even for purposes of impeachment. At the conclusion of the trial, Judge Williams charged the jury that for the false imprisonment claim, the only question was whether the false imprisonment caused damages and the amount of the damages. With respect to the claim for sexual assault, Judge Wiliams charged the jury that Doe must prove that Anggara participated in the sexual act with Doe, that it was committed without Doe’s consent, and that Anggara acted knowingly. On July 19, 2022, the jury returned a verdict that Doe was falsely imprisoned by Anggara and that Anggara sexually assaulted Doe. The jury declined to find that Anggara intentionally inflicted emotional distress on Doe or that the cruise line was negligent. The jury awarded damages of $3,000 for medical and psychological treatment in the past, $240,000 for future medical and psychological expenses, $6,000,000 for pain, suffering, and anguish in the past, and $4,000,000 for future pain, suffering, and anguish (a total of $10,243,000). See August 2022 Update.
The cruise line filed a motion for new trial and a motion for remittitur, and Judge Williams denied the motions on May 11, 2023. Doe did not request any instruction to the jury on pre-judgment interest and asked the court to award pre-judgment interest on past damages in the final judgment. Doe sued under both admiralty and diversity, but she requested a jury trial based on the court’s diversity jurisdiction. The cruise line cited authority from other circuits that “arguably held” that failure to raise the issue of pre-judgment interest violates the province of the jury, but Magistrate Judge Torres did not believe that the decisions in the Eleventh Circuit precluded a judicial award of pre-judgment interest after a jury award as long as the past damages were properly segregated from future damages. Therefore, Magistrate Judge Torres recommended that pre-judgment interest be awarded on the discrete past damages found by the jury. See April 2024 Update.
Chief Magistrate Judge Torres then considered several requests for sanctions against the cruise line. Throughout the litigation, Doe requested the personnel file for crewmember Anggara, and the cruise line responded that the file, which was kept on the ship on which the crewmember worked, could not be located after he was terminated. After the cruise line’s corporate representative testified at trial about the height and weight of Anggara, Doe argued that the information could only have come from the personnel file and should have been produced. The corporate representative testified that the cruise line had diligently searched for the file and that the information came from the cruise line’s database and was not part of the personnel file. Chief Magistrate Judge Torres considered the electronic data to be relevant to the request, and he awarded sanctions of attorney fees (for wasting the time of the litigants and court), concluding that there was no bad faith in the response. The second request for sanctions involved statements presented to the court that turned out to be untrue with respect to body-worn cameras used during interviews, including interviews with Doe and Anggara. Chief Magistrate Judge Torres concluded that the representations were reckless, but the records were eventually produced, over the objection of the cruise line, in time to avoid prejudice to Doe. Therefore, Chief Magistrate Judge Torres issued a sanction awarding fees directly caused by the errant conduct. Doe also sought sanctions for the cruise line’s conduct at trial in six particulars. Chief Magistrate Judge Torres answered that some of the incidents were not sanctionable, and the others were addressed sufficiently with warnings and actions taken during trial. Ultimately, Chief Magistrate Judge Torres reasoned that counsel for the cruise line “had an obligation to zealously advocate for his client and prevent a possible run-away verdict.” He found that “lead counsel’s testimony evidences subjective good faith at trying to walk that fine line,” even if counsel “at times crossed the line.” Therefore, the only sanctions were the two awards of attorney fees for the discovery violations. See August 2024 Update.
The cruise line appealed the adverse judgment on the sexual assault claim and the damages award, arguing that the partial summary judgment order on the false imprisonment claim was the root of errors during the trial with respect to evidence and cross examination. The Eleventh Circuit recognized the “exceptional procedural posture” of the appeal focused on an interlocutory order after the significant time, expense, proceedings, and trial. However, “such is the nature” of the limited appellate jurisdiction over interlocutory appeals. The cruise line argued that Andreasen’s conclusions and notes of Doe’s and Anggara’s statements were admissible under the public records exception to the hearsay rule, and that the court erred in excluding the reports in their entirety in considering Does’ motion for partial summary judgment. Writing for the Eleventh Circuit, Judge Lagoa agreed that the portion of the FBI reports recounting Anggara’s version of the events was inadmissible hearsay; however, Andreasen’s own conclusion that the encounter was consensual was trustworthy and should have been considered as an exception to the hearsay rule (Judge Lagoa believed that the conclusion about the government’s decision not to prosecute was likely unduly prejudicial). Therefore, there was a disputed material fact at the summary judgment stage--whether Doe was confined in the closet against her will--for which the summary judgment should have been denied on the false imprisonment claim. Judge Lagoa then reasoned that the erroneous grant of partial summary judgment on the false imprisonment claim could have affected the outcome of the case in three respects. First, Judge Williams repeated the error in limiting the testimony of Andreasen at trial. Second and third, the jury was instructed that the cruise line was already liable for false imprisonment, which could lead the jury to infer that the sexual conduct was also against Doe’s will and that there was no consent for both the false imprisonment and sexual assault. Judge Lagoa explained that although Andreasen “testified about Doe’s and Anggara’s respective accounts of the events, her conclusion from her investigation could have been the deciding factor for the jury.” Therefore, the Eleventh Circuit held that a new trial was warranted for the false imprisonment and sexual assault claims.
From the federal district courts
William F. Holekamp engaged Westport to retrofit a used 130-foot Westport yacht, including extending the yacht’s stern by 14 feet to accommodate a sport-fishing cockpit. Westport completed the work and returned the yacht to Holekamp, who was not satisfied with the quality of the work, the amount of time to complete the work, or the cost. Holekamp brought suit in state court in his home state of Missouri, and Westport removed the case to federal court. The case was transferred to federal court in Washington (where the work had been performed by Holekamp), and Holekamp filed an amended complaint alleging breach of contract along with counts under Washington law for negligent misrepresentation, fraud, negligence, unjust enrichment, and breach of the Washington Consumer Protection Act. Westport sought dismissal of Holekamp’s state law tort and statutory claims on the ground that they are precluded by the maritime economic loss rule. Holekamp responded that the case was governed by Washington law for two reasons. First, he argued that maritime law does not apply when a vessel undergoes transformative renovations and repairs lasting more than a year and is taken “out of navigation.” Second, he argued that the contract between the parties provided that Washington law applies. Judge Settle disagreed with both arguments. First, he explained that the requirement that the vessel be “in navigation” arose from seaman status cases and had “no bearing on the issue of admiralty jurisdiction over a maritime contract dispute.” He concluded: “The fact that the vessel was undergoing an extensive refit does not mean that maritime law does not apply.” As to the contractual choice of law, Judge Settle noted that the contract provided that it should be “interpreted” under Washington law. Moreover, the Supreme Court’s decision in Great Lakes Insurance v. Raiders Retreat recognized that a choice-of-law provision was not enforceable if it would conflict with an established maritime policy. As the maritime economic loss rule is firmly established, Judge Settle held that Washington law does not control over the maritime rule. Finally, Holekamp argued that the maritime economic loss rule is “not absolute,” and that there is an exception for tort claims involving fraud in the inducement. Judge Settle did not find such an exception in the maritime law, and he held that the maritime economic loss rule barred the state tort and statutory claims. See May 2025 Update.
Westport then moved for partial summary judgment on Holekamp’s claim for breach of contract for failing to perform the work for the contract’s estimated price. Westport argued that it did not commit to do the work for a fixed price, the only prices set forth in the agreement were estimates, the estimates were provided before Westport even saw the vessel and before the list of work to be performed was finalized, and Westport continued to provide a weekly review comparing the initial estimate with the work done and actual charges. Judge Settle reasoned that the use of the term “estimate” was not dispositive and that its meaning had to be determined from the context of its usage. Judge Settle stated that the agreement made clear that “Westport intended to provide only a projected cost, not a firm, fixed price commitment” and that the contract “expressly permitted the cost to be adjusted ‘upwards or downwards[] as necessary to accomplish the refit work’ and left certain costs ‘to be determined.’” Judge Settle then considered whether Westport breached the contract by failing to deliver the vessel in the agreed time: “Westport agrees to complete the retrofit work and deliver the Yacht by the later of April 30, 2022 or the date adjusted pursuant to this agreement.” Judge Settle answered that Westport did not promise to have the project complete by a specific date. In the absence of a specific deadline, Holekamp had no basis to require Westport to bear the costs of a voluntary trip planned during the period in which delivery was delayed. Accordingly, Judge Settle granted summary judgment to Westport on Holekamp’s claim for breach of contract and denied the claim for breach of warranty as moot. On May 20, 2026, Holekamp filed a notice of appeal, pursuant to Section 1292(a)(3), of the dismissal of its claim for breach of contract.
Linda McQueen, a passenger on the MSC SEASHORE, slipped and fell in a wet, sticky spot on the deck in the common area outside the spa on the vessel. McQueen brought this suit against the cruise line in federal court in Florida, pleading a single negligence count for direct liability based on multiple assertions of fault. For notice, McQueen asserted that the cruise line should have known of the dangerous condition that caused her fall and that the cruise line had notice of repeated safety issues giving rise to the propensity for falls in similar areas and class of vessel. The cruise line moved to dismiss the complaint for failure to sufficiently plead notice, and Judge Dimitrouleas agreed, stating that this was “exactly the kind of ‘threadbare recital[] of a cause of action’s elements’ that does not suffice to state a legal claim.” Judge Dimitrouleas added that the pleading did not allege facts with respect to the period of time to take corrective measures or in connection with substantially similar incidents. McQueen argued that she had given 18 different examples of the cruise line’s failure to inspect, maintain, warn, clean, or monitor the area, but Judge Dimitrouleas responded that those were just conclusory statements. Therefore, he dismissed the complaint with one opportunity to cure the deficiencies. See July 2025 Update.
After McQueen repleaded and gave her deposition, the cruise line moved for summary judgment on the grounds that McQueen did not prove that there was a hazardous condition and that she did not demonstrate that the cruise line had notice of any hazardous condition. McQueen admitted that she had no idea what caused her to fall and whether the deck was wet or sticky, only stating that she fell on something on the deck. Judge Dimitrouleas did not have to decide whether a dangerous condition existed, however, as he held that McQueen failed to prove that the cruise line had notice of the condition. McQueen argued that the court could infer that the condition existed for a sufficient period of time to invite corrective measures based on the substantial traffic in the area, the location of the food court at the end of the corridor and the fact that passengers were allowed to carry food and beverages at the location, the presence of crewmembers in the vicinity who responded to the fall and rendered assistance, and the assignment of crewmembers throughout the vessel to monitor and clean up hazards. Judge Dimitrouleas held that the evidence was insufficient as a matter of law to put the cruise line on notice. None of the assertions established that a condition existed long enough to invite corrective measures. Therefore, Judge Dimitrouleas granted summary judgment and entered judgment in favor of the cruise line.
This case arises from the allision of an airboat owned by Airboat Adventures (piloted by Captain Kevin Helmer) and the mooring line that secured the M/V MANDY WHIPPLE to a tree on the bank of the Intracoastal Waterway. The owners of the MANDY WHIPPLE brought this limitation action in Louisiana federal court, and the passengers and captain on the airboat (and beneficiaries of a passenger who died from her injuries) filed claims in the limitation action. The owner of the airboat also filed a claim in the limitation action, seeking to recover for property damage and to recover indemnity for any amounts recovered against it, and the owner of the MANDY WHIPPLE filed a counterclaim and third-party claim against the owner of the airboat and Capt. Helmer under Rule 14(c). Two groups of claimants also filed lawsuits in Louisiana state court against the owners of both vessels and Captain Helmer. The injury/death claimants did not bring claims against the owner of the airboat and its captain in the limitation action. Four of the ten claimants moved to bifurcate the limitation action so that the issues of limitation and liability are tried to the federal court and the trial on damages is thereafter allowed to proceed in state court along with the apportionment of fault. Judge Milazzo noted that judges in the Eastern District of Louisiana look to whether bifurcation would promote convenience, expedite and economize the matter, or avoid prejudice. She reasoned that the proposal to try liability and limitation, leaving allocation of fault and damages to the state court would not promote convenience because it would result in a significant overlap of evidence and testimony, including the facts surrounding the accident and the actions of all of the interested parties. The moving claimants argued that judicial economy favored bifurcation because their claims against the owner and captain of the airboat were not brought in the limitation action. However, Judge Milazzo answered that the Rule 14(c) claims against the owner and captain in the limitation action undercut that argument as the moving claimants’ claims against them were before the court because of Rule 14(c). She added that there was a risk of inconsistent judgments with two state suits and the limitation action and that Captain Helmer, who was a claimant and a defendant, would have to participate in four trials. As for prejudice, Judge Milazzo noted the suggestion of the owner of the airboat that all issues be tried in the limitation action, with liability and limitation tried to the court and damages tried to a jury. She reasoned that this compromise would preserve the petitioner’s right to a bench trial, prevent duplication of trials and evidence, and preserve the right to a jury trial under the saving-to-suitors clause. Therefore, she held that there would be one bifurcated trial.
Ja’Qualyen Hogan was employed by Mistras Group as a blaster/painter on the Thunder Horse Platform, owned and operated by BP, and located on the outer Continental Shelf of the Gulf of America, offshore Louisiana. Hogan claims that he fell when he tripped over a rope on the top rung of stairs on the upper deck of the platform. Hogan brought this suit against BP in Louisiana federal court, asserting that it was negligent for creating and allowing the unsafe condition and failing to supervise the tasks being performed by its contractors. BP moved for summary judgment that it is not liable for the actions of independent contractor Mistras because it did not exercise operational control of the stairs or direct and supervise the contractor’s work. Hogan did not respond, and Judge Vitter applied Louisiana law to the accident on the fixed platform on the OCS. The contract between BP and Mistras provided that Mistras was responsible for the management and supervision of the work, and Hogan presented no evidence that BP exercised any actual control over Hogan or the work. Judge Vitter also noted that the principal remains liable for its own acts of negligence and that it may assume a duty by going beyond the contract and voluntarily policing the worksite for safety problems. As Hogan presented no evidence in the contract or otherwise that BP assumed such a duty, Judge Vitter granted summary judgment to BP.
On December 18, 2020 the M/V GROVE ISLAND allided with a breasting dolphin while berthing at a woodchip loading dock on Humboldt Bay, California. The owner of the dock, Green Diamond Resource Co., and its insurer, Houston Casualty Co., brought suit against the vessel and its owner in California federal court. In anticipation of trial, Green Diamond and Houston Casualty filed a brief arguing that the presumption of fault from THE OREGON applied in this case involving the allision of a vessel with a stationary object. The vessel defendants responded that the presumption does not apply because the purpose of a breasting dolphin is to “bugger the impact of a docking vessel.” Judge Martínez-Olguín noted that the circuit courts appear split on whether the presumption applies when a ship strikes an object that is designed to come into contact with ships, but a number of district court decisions have held that the presumption does not apply when a ship hits an object that is intended to absorb the impact of docking. Judge Martínez-Olguín was persuaded with the reasoning that “it is in the ‘ordinary course of things’ for a vessel that is in the process of docking to come into contact with a breasting dolphin. As breasting dolphins are designed for the purpose of absorbing the impact of docking, the application of the presumption of fault doctrine under these circumstances would conflict with common sense.” Therefore, Judge Martínez-Olguín held that the presumption of fault would not be applied in this case.
Rholand Allen, a passenger on the CARNIVAL PANORAMA, alleges that he was injured when the vessel violently lurched or listed as it was passing through rough seas in a storm. Allen was walking from his bed to the bathroom in his stateroom and was violently thrown to the floor, becoming trapped between the bed and wall. Allen brought this suit against the cruise line in Florida federal court, alleging that the cruise line was aware of the approaching storm and the effect the storm would have on passengers, and the captain should have made adjustments to avoid the violent movement of the vessel. Allen alleged seven counts, including a count for negligent failure to implement or enforce adequate policies and procedures. The cruise line moved to dismiss that count on the ground that it states a theory of negligent mode of operation that is not recognized under the general maritime law. Allen responded that he was not alleging that the cruise lines policies and procedures are negligent. Instead, he argued that the cruise line had notice of the dangerous condition and failed to implement or enforce policies to remedy that dangerous condition. Judge Bloom disagreed with Allen, stating that the count “alleges that the implementation or adoption of procedures regarding navigating in and responding to rough seas was inadequate and caused Plaintiff’s injuries. This is soundly a negligent mode of operation claim.” Consequently, Judge Bloom dismissed the count with prejudice.
Tyson Tucker applied for a job with Centerline Logistics in December 2020. He was offered a job with its subsidiary, Harley Marine NY, Inc., and he signed various documents including an arbitration agreement titled NJ Binding Arbitration. The agreement provided for arbitration of all claims arising out of his employment relationship, including tort claims, but excluding workers’ compensation and unemployment insurance claims. Tucker was assigned to the barge FLACO and was injured while working on the vessel in Puerto Rico during a line heaving incident involving the FLACO and the tug C.F. CAMPBELL (both of which are operated by Harley Marine NY. Tucker brought suit against Centerline Logistics, Harley Marine NY, and other affiliates in federal court in New York, asserting claims under the Jones Act and general maritime law (unseaworthiness and maintenance and cure). The defendants moved to compel arbitration, and Tucker answered that the Federal Arbitration Act and Jones Act preclude arbitration of his claims, the agreement was procured by misrepresentation, and the agreement did not cover the dispute. Tucker cited the provision in Section 1 of the FAA that excludes contracts of employment of seamen from its terms. Judge Block answered that the exclusion merely means that the enforcement mechanisms of the FAA are not available, and its inapplicability does not render the arbitration provision unenforceable. Tucker also argued that the right to a jury trial in the Jones Act precludes enforcement of the arbitration agreement, but Judge Block answered that the waiver of the right to a jury trial is not the same as a release of liability and does not subject the agreement to the same scrutiny as a release, citing the language from the Supreme Court: “By agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.” Tucker next argued that the agreement was procured by misrepresentation because the exception for workers’ compensation claims misled him to believe that his Jones Act claims would be excluded from the arbitration agreement. Judge Block noted that tort claims were included, and the provision was not ambiguous. Thus, there was no basis to conclude that the defendants engaged in fraud or misrepresentation “simply because he misinterpreted the contract.” Finally, Judge Block held that the argument that Jones Act claims were not expressly included would have to be submitted to the arbitrator in light of the delegation clause: “Any controversy concerning whether an issue can be arbitrated shall be determined by the arbitrator.” Therefore, Judge Block granted the motion to compel arbitration.,
Acciaierie D’Italia (ADI), which operates a steel-manufacturing business in Taranto, Italy, entered into contracts with XCoal Energy under which ADI purchased coal from XCoal and required delivery of the coal to ADI’s plant in Taranto. XCoal claimed that ADI breached the contracts, and XCoal initiated arbitration against ADI, seeking $3,437,552. Before it finished filing claims in the arbitration, XCoal brought this attachment action in federal court in Alabama, seeking damages of $38 million and attaching coal allegedly belonging to ADI on the MV BULK DESTINY. Claiming that the coal on the vessel was actually owned by Javelin Global Commodities, seller under a contract with ADI, and that the contracts between ADI and XCoal were not maritime contracts, ADI and Javelin moved to vacate the attachment. Although ADI had paid 25% of the purchase price for the coal to Javelin as a prepayment, the contract with Javelin provided that title would pass when both the prepayment and provisional payment were made. As the provisional payment had not been made, the title to the coal was still in the name of Javelin, and the coal did not belong to ADI. Therefore, Magistrate Judge Cassady held that ADI had no property right that would allow XCoal to maintain the attachment. Magistrate Judge Cassady also held that the attachment had to be vacated because the contracts between XCoal and ADI were not maritime contracts. Citing Kirby (contract involving transportation by ship and rail), XCoal argued that the contracts were maritime because they required that the coal would be shipped across the sea to Italy. Magistrate Judge Cassady disagreed, reasoning that the “primary objective” of the contracts was not transportation of goods (even though the damages would include demurrage), and the purchase/sale elements were the primary objective and were not “merely incidental.” As the court could not exercise maritime jurisdiction over the dispute, Magistrate Judge Cassady recommended that the attachment be vacated. See November 2023 Update.
There were “procedural twists and turns” after the recommendation. XCoal moved to vacate its attachment to avoid a ruling by Judge Moorer on the recommendation. Judge Moorer allowed Javelin Global Commodities, which claimed ownership, to file a complaint in intervention in the proceeding. Javelin and ADI objected to the motion to dismiss, arguing that the motion was procedurally improper. Javelin also filed a separate action against XCoal for wrongful attachment, intentional interference with contractual relationship, and tortious interference with a contractual relationship. That suit was consolidated with the original suit. As for XCoal’s motion to dismiss, Judge Moorer agreed that the motion was not a self-effectuating voluntary dismissal under Rule 41(a)(1)(A)(i), and he considered it pursuant to Rule 41(a)(2). Judge Moorer did not believe that the motion should be granted because the judge had warned XCoal that if the seizure was improper there might be significant financial consequences. Judge Moorer then considered Magistrate Judge Cassady’s recommendation and adopted it. He therefore granted the motions to vacate the attachment, reserving the issue of wrongful attachment for further proceedings. The vessel was allowed to depart the district with the coal. See July 2024 Update.
XCoal and Javelin then filed motions for summary judgment. XCoal argued that Javelin could not satisfy the bad faith standard for a wrongful arrest set forth in Frontera Fruit Co. v. Dowling and that the common law claims were not available under Eleventh Circuit precedent that the “‘proper cause of action’ when a party seeks to recover on wrongful attachment and conversion theories ‘is wrongful attachment, not some other cause of action taken from the common law.’” As Javelin’s claims for tortious and intentional interference with a contract arose from the same facts as the maritime attachment claim, Magistrate Judge Cassady recommended that summary judgment be granted dismissing the common-law claims. Turning to the wrongful attachment claim, XCoal argued that its conduct did not rise to the level of malice, bad faith, or reckless disregard of the other party’s legal rights. It asserted that it had a good faith basis to believe that ADI had an attachable interest in the coal because it was purchasing the coal, had paid at least 25% of the purchase price, and it was planning to become the full titled owner of the coal. Although the contract provided that title would not pass to ADI until payment in full, Magistrate Judge Cassady did not believe that asserting an incorrect legal argument was sufficient to establish bad faith, malice, or gross negligence. The evidence reflected that XCoal was aware from its attorneys that it would be difficult to establish that the contracts were maritime; however, it was not advised that there was no legal basis to proceed with its argument. Therefore, Magistrate Judge Cassady recommended that summary judgment be granted in favor of XCoal that Javelin failed to prove the attachment was done in bad faith, with malice, or in reckless disregard for Javelin’s rights. Similarly, Magistrate Judge Cassady recommended that Javelin’s motion for summary judgment on its wrongful attachment claim be denied, concluding that XCoal’s actions at most constituted negligent error. Javelin objected to the recommendation, and after “robust” briefing, Judge Moorer adopted Magistrate Judge Cassady’s recommendations, agreeing with the analysis “in full.” Javelin filed a notice of interlocutory appeal, pursuant to Section 1292(a)(3), on July 9, 2026.
Pines Hardwear and Construction purchased a 1993 Thompson Fisherman motor vessel to transport construction equipment for its general contracting services around Long Island and Fire Island. The sole principal of Pines Hardwear was Don Kohlhepp, who operated the vessel. On March 19, 2019, Pines Hardwear was planning to perform contracting work in and around Fire Island. Kohlhepp offered Nelson Reyes a ride on the vessel to the island, and the vessel accidentally struck a pier (at the premises of Fire Island Pines Property Owners Association) in the waters of the Atlantic Ocean. On April 19, 2021, Reyes filed a complaint in New York state court against Pines Hardwear, Kohlhepp, and the Fire Island Pines Property Owners Association, and the Association removed the action to federal court. On June 30, 2021, Pines Hardwear and Kohlhepp brought this limitation action in the same federal court. They filed a motion for partial summary judgment, arguing that the amendment to the Limitation Act (enacted on December 21, 2023, excluding covered small passenger vessels from the protection of the Act, was not retroactive to the date of the incident and that the vessel was not a small passenger vessel because the vessel was never used to transport passengers for hire and Ryes was never charged for the transportation. With respect to the retroactivity, Judge Choudhury noted that an earlier iteration of the amendment included a retroactivity provision that the amendment would take effect as if the law were enacted on September 2, 2019 (the date of the fire on the CONCEPTION that prompted the amendment). However, the version that was enacted was silent on retroactivity. Judge Choudhury noted that the Second Circuit (and district courts in the Second Circuit) routinely recognize that statutory amendments that increase the potential monetary liability of defendants are not applied retroactively. Using that principle, Judge Choudhury concluded that “because the amendments to the Act remove the limits on liability for covered small passenger vessels, potentially exposing the owners of such vessels to a significant increase in damages, the Amendments do not apply retroactively to the March 19, 2019 accident at issue in this dispute.”
This case involves an injury sustained by Courtney Cepeda while trying to tie up to the Harbor Bay Marina on Lake Ray Hubbard, a reservoir built on the East Fork of the Trinity River in Rockwall County, Texas. Cepeda initially brought suit against the owner of the dock, the City of Rockwall, in federal court in Texas, based on the court’s admiralty jurisdiction. That case was dismissed, and before the court reached Cepeda’s motion for reconsideration, Tucker brought a second suit against the City in state court in Rockwall County, Texas, which the City removed under the court’s federal question jurisdiction and pursuant to the court’s original admiralty jurisdiction. Cepeda moved to remand the case, and Chief Judge O’Connor noted that the Fifth Circuit has not provided guidance on the removability issue. However, he stated that most district courts have held that “savings-to-suitors claims do not provide an independent basis for federal jurisdiction.” Chief Judge O’Connor agreed that “the savings-to-suitors clause does not provide an independent basis for federal question jurisdiction, and he then considered the argument that the court should accept the case based on admiralty jurisdiction but dismiss the case because the court lacks admiralty jurisdiction. Reasoning that this was the sort of case contemplated for concurrent jurisdiction of the state courts, Chief Judge O’Connor remanded the case to the state court.
Pen Air Credit Union entered into a loan agreement with Shawn Steele, an individual who resides in Florida, in the principal amount of $299,243. The loan was secured by a first preferred ship mortgage on the recreational vessel FAN-DANE-GO. When Steele defaulted on the loan, Pen Air brought this suit in federal court in New Jersey against the FAN-DANE-GO, in rem, as the vessel was located at a marina in Belmar, New Jersey. Pen Air also brought an in personam claim against Steele in the suit. Steele moved to dismiss the in personam claim for lack of personal jurisdiction, and Judge Castner noted that, as Congress has not authorized nationwide service of process for admiralty cases, the service would have to adhere to New Jersey’s long-arm rule (which has been extended as far as is constitutionally permissible under the Fourteenth Amendment). Steele argued that he had not purposefully directed any activities toward New Jersey related to the contract with Pen Air; however, Judge Castner cited cases in which an action was brought against the vessel and its owner and the court held that “a good faith allegation in the complaint that the res is present within the geographical jurisdiction of the court is the jurisdictional fact which gives the court in personam jurisdiction over the defendant purported to own the res.” Judge Castner added that allowing adjudication against the owner would comport with fair play and substantial justice because it would result in the most efficient resolution of the controversy (the marina also brought a claim against Steele). Therefore, Judge Castner declined to grant Steele’s motion to dismiss.
Darlene Wampole, a passenger on the CARNIVAL CONQUEST, was walking on the elevated teak wood deck surrounding a hot tub on the vessel when the floor beneath her (with a closed hatch used to allow maintenance access to the hot tub) collapsed. Wampole brought suit against the cruise line in federal court in Florida with counts for negligent failure to remedy, negligent failure to warn, negligent design and installation, and vicarious liability. The cruise line moved for summary judgment on all of the counts. It argued that the direct liability claims should be dismissed for lack of notice of the dangerous condition. Wampole cited two work orders involving “whirlpool leaking from pump and rust casing” and “whirlpool varnishing to be done.” Both work orders were closed. Judge Moore agreed that work orders can provide evidence of notice of a dangerous condition, but the work orders in this case did not provide any notice of any issues with the hatch or the structural integrity of the teak wood deck adjacent to the whirlpool. Wampole also argued that the cruise line had notice based on photographs after the accident reflecting that the area underneath the hatch was rusted and degraded (indicating that the area had not been maintained for a long time). Judge Moore explained that the photographs were evidence of the length of time that the condition had existed, but they did not establish that the condition was reasonably detectable so as to invite corrective measures. Finally, Wampole relied on the opinion of her expert that the hatch should have had a support beam based on industry standards. Judge Moore rejected that claim as it failed to connect the noncompliance with a showing that the cruise line should have known about the noncompliance. Accordingly, Judge Moore granted summary judgment on the claims for direct liability. Turning to the claims for vicarious liability, Judge Moore agreed that Wampole did not have to establish notice on the part of the cruise line; however, she still had to identify a specific employee whose negligence caused her injury. Judge Moore granted the motion for summary judgment, and Wampole filed a notice of appeal the same day.
While the case is on appeal, the cruise line moved to tax costs in the amount of $8,920.15 as the prevailing party. The costs were for subpoenas on medical providers, employer, and related entities and deposition transcripts. After objections, the cruise line agreed to remove charges for expedited transcripts, condensed transcripts, and DepoSummary Pro charges. The new request was for $7,906.05, but Magistrate Judge Elfenbein noted that the revised total contained a mathematical inconsistency in the reduction (the correct amount sought should have been $7,546.05). Wampole argued that the court should stay taxation of costs pending appeal, but Magistrate Judge Elfenbein responded that deferring action on the bill of costs pending appeal is discretionary, and Wampole did not meet her burden to justify a stay. Therefore, Magistrate Judge Elfenbein recommended that the decision on the bill of costs not be stayed. The cruise line argued that the cost of service of subpoenas to medical providers, employer, insurance, pharmacy, and related entities was necessary because Wampole’s medical and earning issues were at issue. Wampole argued that the rate was higher than the amount charged by the Marshal and that the cruise line used an overbroad “buckshot” approach to the parties who were subpoenaed. Magistrate Judge Elfenbein reviewed the charges and found that they were at or lower than the rate for the Marshal and also found that the subpoenas were reasonably necessary in response to Wampole’s allegations. Magistrate Judge Elfenbein also concluded that the deposition charges were reasonably necessary and awarded the corrected amount after deducting the charges that the cruise line conceded should not be included. Therefore, Magistrate Judge Elfenbein recommended awarding a total of $7,546.05 in taxable costs.
International Ship Repair agreed to provide a berth in Tampa, Florida for Herald Marine & Energy’s vessel HERALD MARINE, beginning on August 10, 2024, until the vessel was transported to its home port in Nigeria. Herald Marine did not remove the vessel, and International Ship Repair filed this complaint against the vessel on June 23, 2025, in rem, asserting a claim for unpaid dockage. The vessel was arrested, and International Ship Repair was appointed to serve as substitute custodian on July 1, 2025. From that date until March 2026, the vessel accrued $832,409.36 in custodia legis costs. Herald Marine & Energy, a Nigerian private limited company, filed a claim of owner. On March 19, 2026, International Ship Repair moved for an interlocutory sale, and Herald Marine opposed the motion, arguing that International Ship Repair failed to make repairs that were a condition to the vessel’s movement to Nigeria. Herald Marine also argued that it took steps to remove the vessel but was unable to do so. Magistrate Judge Sansone recited the factors considered with respect to an interlocutory sale and determined that two of the three were satisfied. International Ship Repair alleged that it was owed $840,857.62 at the time of arrest and that, with the custodia legis expenses, the amount due exceeded $1,673,266.98 (and was increasing by $2,544 per day). In contrast, the vessel was an aging barge for which only scrap dealers had expressed an interest. There was also an unreasonable delay as more than 10 months had elapsed since the arrest (four to five months being the generally recognized threshold to justify an interlocutory sale). Therefore, Magistrate Judge Sansone recommended an interlocutory sale, and Judge Mizelle adopted the recommendation when no objection was filed. Magistrate Judge Sansone separately allowed International Ship Repair to credit bid at the sale for the amount sought of $1.6 million as no other liens had been asserted.
James Gang Charters as owner of a 2017, 37-foot, Freeman vessel, and owner pro hac vice Jesse Mayer, sought limitation of liability on August 10, 2020 after an incident on August 30, 2019, when the vessel struck and killed Robert Krysztofowicz in waters near the Tom Stuart Causeway in Pinellas County, Florida. The petitioners transferred title to the vessel to trustee Kevin McLaughlin for the limitation fund, and the vessel was stored outside, uncovered, with engines not started or maintained. The petitioners reported an offer to purchase the vessel for a net of $300,000 and requested authorization to market the vessel for 30 days and to accept the offer if no higher offer materialized. The claimants opposed the motion, arguing that the proposed sale would depress the limitation fund (providing an independent survey estimating the fair market value of the vessel at $388,000). Magistrate Judge Sansone recommended that the motion be denied, reasoning that the moving party must offer evidence that the vessel is liable to deterioration, decay, or injury, and generalized statements about the conditions are insufficient. The statement provided by the petitioners that the vessel is exposed to deteriorating effects of the elements did not satisfy their burden. There was no objection to the recommendation, and Judge Honeywell adopted it.
Patricia Bisessar, a passenger on the CARNIVAL HORIZON, alleges that she was walking on Deck 4, approaching the vessel’s casino, when she tripped on an unmarked raised threshold or sudden change in elevation on the interior walking surface. She brought this suit against the cruise line in federal court in Florida with counts for negligent maintenance and negligent failure to warn. The cruise line filed a motion to dismiss for lack of notice, and Bisessar responded that the cruise line had notice from eight incidents on other vessels of tripping falls on raised thresholds or transition strips. Each incident included the date, passenger name, area, and vessel; however, Judge Bloom did not consider that information to be sufficient to determine whether the hazard at issue in those cases was similar to he hazard in this case, explaining that it is not sufficient to state that those cases involved poorly maintained flooring transition, an uneven or raised metal threshold, or a raised metal transition-strip threshold. Judge Bloom stated: “To find notice based on the facts presented here would effectively find that Defendant has notice for any passenger that falls on one of its ships due to any uneven flooring. That would significantly alter the notice requirement in such cases.” Judge Bloom added that the complaint of an unmarked raised threshold or change of elevation did not provide information from which the court could determine whether the hazard existed for enough time to allow corrective measures, and reference to the inspection schedule for the area did not provide details that established notice. Therefore, Judge Bloom dismissed the complaint without prejudice with leave to file an amended complaint.
Tyree Jackson, his wife, and his minor daughter, T.J., were passengers on the CARNIVAL MARDI GRAS. While exiting the main pool on Deck 16 of the vessel, T.J. slipped and fell backward when her feet contacted the deck. Tyree brought this suit against the cruise line in Florida federal court, alleging that the cruise line knew that area was unreasonably slippery and failed to implement a timely solution or block the area from passenger use and that the area was damaged and had not been timely repaired. He brought counts for vicarious liability for negligence of the crew and direct liability for negligence and failure to train. The cruise line moved for summary judgment that the evidence did not establish there was a dangerous condition immediately prior to the incident as the witnesses did not see water on the deck before the accident, and the CCTV did not show any puddles. However, T.J. was certain that the deck was wet and noticed that the deck was wet after she slipped. Her mother saw water all around the area after the fall, and the crew admitted that there is water on the pool deck most of the time. Magistrate Judge Reid concluded that there was enough circumstantial evidence and post-fall evidence to reject summary judgment on the existence of a dangerous condition. The cruise line also argued that the slipperiness of a wet pool deck is open and obvious, particularly because T.J. had prior experience with pools and pool decks, and the cruise line put multiple warnings on the ship and in the ticket to forbid running, horseplay, jumping, and diving around the pool area. However, Magistrate Judge Reid did not believe that wetness is the same as unreasonable slipperiness, and there were fact disputes about the manner in which T.J. exited the pool (jumping or stepping). Finally, Magistrate Judge Reid found sufficient proof of notice to the cruise line from the evidence of a crewmember that it was his job to dry the pool deck to prevent guests from slipping and to place a warning sign in the area when he saw a wet spot. Her conclusion was supported by the fact that another passenger slipped in the same area about 40 seconds after T.J., and there were instances of substantially similar incidents. She recommended that the motion for summary judgment be denied. The cruise line objected, and Judge Gayles agreed with the recommendation and denied the motion. See July 2026 Update.
Jackson moved to strike testimony of the cruise line’s witness, Dr. Zdenek Hejzlar, with respect to his annual slip-resistance testing on the cruise line’s ships, including the MARDI GRAS. The cruise line did not retain or disclose Dr. Hejzlar as an expert, and he did not perform testing related to the incident in this case. Jackson objected that Dr. Hejzlar did more than testify about the results of his non-litigation testing and ventured into specialized opinions on hypothetical questions with the facts involved in this case. Magistrate Judge Reid agreed that some of the questions “blurred ‘into supposition and extrapolation’ as Hejzlar was asked technical questions applying his specialized knowledge of COF testing to the facts of the case” and were impermissible expert opinions that should be excluded (for example, “When an 8-year-ol-child jumps from a 17-inch-high ledge and lands with both feet, would you agree that the vertical impact forces on contact would be several times that child’s body weight and far beyond the loads applied by your instrument?”). Other questions, although related to the case, did not ask Dr. Hejzlar to extrapolate or hypothesize using case specific facts (for example, “Is the [COF] standard at all designed to represent jumping or jump landings or impact movements?”). Magistrate Judge Reid allowed Dr. Hejzlar to testify to his observations from CCTV footage of the incident as it did not involve technical or specialized opinions, but his opinions on causation and his critiques of the opinions of Jackson’s liability expert went beyond lay testimony and were excluded. The cruise line objected to the recommendations, and Judge Gayles overruled the objections.
HC&D, a Hawaiian company, purchased a freight barge from Cashman Equipment to use in transporting concrete in Hawaii. The Purchase and Sale Agreement contained a Boston, Massachusetts forum-selection clause. Prior to executing the Agreement, Precision NDT & Consulting (a Louisiana company with its office in Patterson, Louisiana) inspected the barge in Louisiana and prepared a Hull Diminution Survey for the barge, demonstrating its seaworthiness. HC&D allegedly relied on the report for its purchase. After the sale, the barge was towed from Amelia, Louisiana to California, where a visual inspection revealed the barge to be flooded and holed out. HC&D, which spent almost $4 million to repair the barge, brought this suit in federal court in Massachusetts against Cashman Equipment and Precision NDT, and Precision NDT asserted that the complaint should be dismissed for lack of personal jurisdiction. HC&D then moved to transfer the case to Louisiana in its entirety. Judge Woodlock found that Massachusetts had personal jurisdiction over Cashman Equipment, but that there was no personal jurisdiction over Precision NDT in Massachusetts. Instead, he found that there was personal jurisdiction over Precision NDT in the Western District of Louisiana, and that there was also personal jurisdiction over Cashman Equipment, which conducts a meaningful amount of business in Louisiana and has a business address there. Accordingly, the Western District of Louisiana could be an appropriate venue for both defendants. That conclusion presented the issue of whether the judge should transfer all or a portion of the case. Giving effect to the forum-selection clause, Judge Woodlock agreed to sever HC&D’s claims against Precision NDT so that the claims against Cashman Equipment would remain in federal court in Massachusetts, and the claims against Precision NDT were transferred to the Western District of Louisiana. See November 2023 Update.
Cashman Equipment moved to dismiss the complaint for failure to state a claim, citing the clause that the vessel was being sold and purchased in its current condition, “AS IS-WHERE IS.” Judge Burroughs held that HC&D had, despite the “as is” clause, sufficiently pleaded facts to support its claims for fraud and fraudulent inducement based on representations related to the purchase of the barge. She explained that the clause was a general disclaimer that did not contradict the many specific representations made about the barge by Cashman Equipment. However, Judge Burroughs agreed to dismiss the claim for negligent misrepresentation, reasoning that “intentional misconduct . . . justifies judicial intrusion upon contractual relationships in order to prevent the wrongdoer from securing contractual benefits for which he has not bargained,” but the “as is” clause barred a claim for negligent misrepresentation. Finally, as HC&D asserted that it was deceived from its headquarters in Hawaii, Judge Burroughs dismissed the claim for violation of Massachusetts’ unfair practice statute, despite the fact that the contract designated Massachusetts law to apply and the fact that Cashman Equipment was headquartered in Massachusetts. See December 2024 Update.
Cashman Equipment moved for summary judgment on the remaining claims of fraud and fraudulent inducement (brought under Massachusetts law). Judge Burroughs began by enumerating the three alleged misrepresentations, that Cashman Equipment represented that it had recently renewed the barge’s five-year certification and addressed any related maintenance issues; that Cashman Equipment provided the Precision Gauging Report to HC&D, which contained representations about the barge’s steel wastage and other measurements; and that Cashman Equipment may have represented that water observed in the hull (noted in the Condition and Valuation Survey) was rain water from a tank inspection. Although Cashman Equipment presented evidence to dispute the falsity of the representations, Judge Burroughs found sufficient evidence to create a fact issue whether the representations were knowingly false, material, and made with an intent to deceive. That left the issue of materiality. Cashman Equipment argued that its acceptance of HC&D’s offer to purchase the barge constituted a binding contract, but Judge Burroughs found that there was a question whether the contract was subject to a condition precedent, which reserved to HC&D the right to withdraw its offer if the survey findings were not satisfactory. After HC&D reviewed the materials, the agreement provided that the vessel was to be sold/purchased AS IS-WHERE IS, and it disclaimed any representations with respect to seaworthiness or fitness. Cashman argued that any reliance on misrepresentations would be unreasonable as a matter of law in light of the provision, but Judge Burroughs held that the complained-of misrepresentations went beyond the specific disclaimer as they involved the origin of the water, the recency of the certification and completion of repairs, and the amount of wastage and wear. Accordingly, the contract did not bar HC&D from asserting that its reliance on the representations was reasonable. Therefore, Judge Burroughs declined to grant summary judgment on the claims for fraud and fraudulent inducement. See March 2026 Update.
The parties filed motions to exclude or limit expert testimony. Cashman moved to exclude the testimony of HC&D’s expert, Arne Stenseng related to the 2019 gauging report prepared by Precision NDT on the basis that the testimony relied on a comparison with 2021 measurements that are not in the record and that were not personally validated by Stenseng. Judge Burroughs rejected the argument, answering that experts do not need to independently validate the reports if reliance on their accuracy is reasonable for experts in the field. Cashman moved to exclude Stenseng’s conclusion that certain damages occurred to the barge in 2019 and that the damages were either not repaired or were repaired incorrectly, arguing that Stenseng did not know the precise details of the damages/repairs. Judge Burroughs disagreed, stating that Stenseng did not have to state specifically where damages or repairs occurred to testify that damages existed or repairs occurred, provided the methods he used to reach the conclusions satisfied Daubert. Cashman sought to exclude Stenseng’s testimony about what American Bureau of Shipping relied on in its 2019 survey and what it would have done if presented with different gauging data. Judge Burroughs agreed that Stenseng could testify about his understanding of standard practice in the industry and applicable rules, but he could not testify about what ABS would have done if presented with different gauging data. Finally, in response to the objection that Stenseng lacked knowledge and experience of commercial barge operations to testify that the barge will require expensive repairs to be operate commercially, Judge Burroughs ruled that he could testify as to what would be required to bring the barge into compliance with ABS classification. HC&D moved to exclude or limit the testimony of Cashman’s experts, William Bartlett and George Wittich. HC&D argued that Bartlett’s testimony on steel corrosion rates should be excluded because he took a contradictory position on steel corrosion rates in his expert report in a different matter. Judge Burroughs reasoned that his “disavowal” of his prior approach is relevant to whether his current testimony is based on methods and procedures of science, but it is not dispositive. Despite the arguable contradiction, Judge Burroughs believed that his methodology was sufficient to allow his testimony. Judge Burroughs similarly declined to exclude Bartlett’s testimony about a chart in his report that he could not explain in his deposition, stating that his inability to explain it goes to the weight of his testimony. Turning to the objections to the testimony of Wittich, Judge Burroughs held that he could testify that the COVID pandemic would not have prevented HC&D from personally inspecting the barge, that he could testify concerning the behavior of “prudent” barge purchasers, that the barge was surveyed and inspected by an experienced ABS inspector (although he misidentified the inspector), that he could testify concerning the International Inspection gauging report to the same extent as Bartlett, that he could testify about damage to barges during towage, and that he could testify about mitigation of damages. Judge Burroughs held that Wittich could not testify that HC&D was an experienced barge purchaser or about how Cashman would have conducted itself if it had been aware that the barge was in poor condition.
Judge Burroughs conducted an 8-day jury trial in May 2026, and the jury returned a verdict that Cashman knowingly or reckless made false representations that HC&D would consider material to its decision to purchase the barge, that Cashman made the false representations with the intent that HC&D rely on them in purchasing the barge, that HC&D reasonably relied on the false representations, and that HC&D suffered financial loss from its reliance. The jury found that the difference in value between what was promised and what was received was $885,000, with additional damages of $234,231.19, resulting in a total verdict of $1,119,231.19. The jury found that no one else caused the damage and that HC&D did not fail to mitigate damages. Both parties challenged the verdict, but Judge Burroughs rejected the arguments. HC&D argued that there was no discernible mathematical basis for the amount awarded, but Judge Burroughs held that the jury had reason to award less than the expenses presented by HC&D and explained: “Further, jury awards do not need to be clearly based on a particular mathematical approach to be affirmed, particularly where, as here, the jury was required to decide what subset of the total of various sums introduced by HC&D was properly attributed to Cashman’s malfeasance.” Thus, she ruled that “the jury verdict will stand.”
Salvatore Colangelo is the owner of the power yacht LET’S LIVE II. On August 31, 2025, the vessel was navigating southbound in the East River near the FDR Drive, between 23rd Street and 25th Street, in New York City when it collided with the southbound M/V CABANA, resulting in injuries on both vessels. Colangelo filed this limitation action in New York federal court on October 15, 2025, and the deadline to file claims was set on November 27, 2025. Several claims were timely filed, but on April 1, 2026, the court received a letter seeking leave to file late claims on behalf of three individuals who were passengers on the CABANA, Chakeri Mitchell, Frederick Scott, and Francesca Brown. The claimants who filed timely claims objected, arguing that the new claims could diminish their respective recoveries from the limitation fund (Colangelo did not take a position). Counsel for the new claimants asserted that he had acted diligently to discover the limitation action. He promptly contacted the New York City Police Department, the New York City Fire Department-Emergency Medical Services, and the Coast Guard, and hired an investigator to determine the owner of the LET’S LIVE II. He discovered the existence of the limitation action on March 30, 2026 and sent his request to the court two days later. Judge Cronan noted that discovery had not begun, and there was a third-party claim that had not yet been answered. Thus, Judge Cronan believed that the new claimants had acted diligently and there was no prejudice at this stage in the litigation. With respect to the argument that the addition of claimants would decrease the share of claimants who filed timely claims, Judge Cronan answered that the argument was insufficient to deny the filing of a late claim, stating: “indeed, it is part and parcel of the scenario contemplated by the Federal Rules, which allows late claims to be filed ‘for cause shown’” and “it is a consequence consistent with the admiralty’s equitable distribution of a limitation fund among all injured parties.” Therefore, Judge Cronan allowed the movants to file their claims by May 12, 2026.
Recommendation Houston Fleeting
This litigation results from a collision in the Houston Ship Channel between the M/V YANGZE 7 (owned by Ladon Shipping) and the M/V MISS PEGGY (owned by Houston Fleeting Services). Both vessels were inbound (with the bulk carrier YANGZE 7 following astern of the MISS PEGGY). The MISS PEGGY capsized and sank. Aquarius Lowman, a seaman on the MISS PEGGY, died, and his personal representative, Karribian Scott, brought claims for negligence and unseaworthiness under the Jones Act and general maritime law (including a demand for future lost earnings). Other crewmembers on the MISS PEGGY were injured. Limitation actions were filed by the owners of both vessels, and the actions were consolidated. Houston Fleeting Services moved to dismiss the Estate’s claim for future lost earnings, arguing that the seaman’s Estate is only entitled to recover losses suffered during the seaman’s lifetime. Scott argued that the Estate was entitled to recover for loss of support, but Magistrate Judge Palermo answered that “only dependents are entitled to that relief.” As Scott’s claims were brought on behalf of Lowman’s Estate, he was not entitled to loss of support or loss of future earnings. Therefore, Magistrate Palermo recommended that the motion to dismiss be granted. Scott objected to the recommendation, but Judge Eskridge adopted the recommendation and dismissed with prejudice the Estate’s claim for lost future earnings/loss of support. See November 2025 Update.
Magistrate Judge Palermo recommended that the Estate’s claims for punitive damages under the Jones Act and general maritime law for unseaworthiness be dismissed, and Judge Eskridge agreed. Magistrate Judge Palermo also entered a bifurcation order that the court would address negligence, seaworthiness, privity, and apportionment of fault in one proceeding followed by a damage trial in a court of the claimants’ choosing. Landon then filed a motion for summary judgment, asserting that the claimants (injured on the MISS PEGGY), were not entitled to recover non-pecuniary damages or punitive damages from Landon, owner of the YANGZE 7. The motion presented the legal question whether a seaman can recover non-pecuniary damages against a non-employer third-party tortfeasor under the general maritime law. The claimants argued that the motion was moot because the court bifurcated the proceeding with damages to be determined by a jury in the court of the claimants’ choosing. Magistrate Judge Palermo disagreed, reasoning that the damage trial would assess the amount of damages and that determining whether damages were recoverable is “a question of law and an issue of determining liability—not assessing an amount of damages.” Magistrate Judge Palermo noted that the injured seamen sought to recover mental anguish, disfigurement, and punitive damages. The estate sought to recover pain and mental anguish suffered by Lowman before his death, loss of society, loss of nurture, survivor’s grief and anguish, and exemplary damages. Magistrate Judge Palermo held that “the Fifth Circuit has now made it clear that under both the Jones Act and general maritime law, a seaman’s damages against both employers and non-employers are limited to pecuniary losses.” Therefore, Magistrate Judge Palermo recommended dismissal of the claims for punitive damages. She then considered the other elements of damages and recommended dismissal of the Lowman family’s claims for mental anguish and grief, loss of society, and loss of nurture. However, she declined to dismiss the claims for Lowman’s pain and anguish prior to death and the injured seamen’s claims for mental anguish. The claimants appealed the decision on mootness and the dismissal of the non-pecuniary claims, and Judge Eskridge adopted her recommendation and her decision on the categories of damages asserted by the claimants.
Magistrate Judge Palermo then addressed Houston Fleeting’s motion for summary judgment, seeking dismissal of Ladon’s limitation proceeding on the ground that the YANGZE 7 violated Inland Rule 5 (lookout rule) for which the presumption of THE PENNSYLVANIA Rule applied, so that exoneration and limitation were unavailable. Landon responded that Houston Fleeting’s violations were with respect to Landon’s Ship Operation Manual and not Inland Rule 5 (so that THE PENNSYLAVANIA Rule was inapplicable) and that the evidentiary presumption is not applicable to a fulsome evidentiary record. Magistrate Judge Palermo agreed with Ladon, reasoning that Houston Fleeting simply cited two violations of the Manual without connecting the violations to the requirements of Rule 5 (Houston Fleeting “has not demonstrated that violating the SOM’s requirements to designate a lookout on the bridgewing and post a deck officer on the bow equates to a violation of Rule 5’s requirement to maintain a proper look-out under the specific circumstances present during the incident”). Magistrate Judge Palermo also agreed that need for the evidentiary presumption was no longer necessary as the presumption is “designed to fill a vacuum,” and the parties had introduced evidence “to dispel the mysteries” that give rise to the presumption. There were fact disputes whether each party was negligent and caused the injuries, and the disputes should be resolved in a trial. Finally, Houston Fleeting argued that the court should grant summary judgment that Ladon had privity and knowledge, through the master, of the YANGZE 7’s negligent act of failing to maintain a proper lookout because the arrival checklist showed that the master knew additional lookouts were not posted, and the master’s invocation of the Fifth Amendment during his deposition gave rise to an adverse inference that the vessel had insufficient crew to maintain a proper lookout. Magistrate Judge Palermo noted that an adverse inference may be drawn in a civil case when a party invokes his Fifth Amendment privilege, but the trier of fact is not required to draw a negative inference. She explained that the master and crewmembers invoked their right when there was the threat of a criminal investigation, and Houston Fleeting had not sought to take the master’s deposition after the threat of criminal liability dissipated. She declined to draw an adverse inference, leaving insufficient evidence demonstrating the knowledge of the master at the beginning of the voyage. Therefore, she recommended that Houston Fleeting’s motion for summary judgment be denied. No party objected to the recommendation, and Judge Eskridge adopted the recommendation and denied the summary judgment.
The Update has previously discussed the decisions resulting from the collision between Marquette’s vessel, the KIEFFER BAILEY, which was proceeding down the Mississippi River near Chalmette, Louisiana, and the STRANDJA (owned by Balkan Navigation and managed by Navigation Maritime Bulgare), which was un-anchoring in the river. See February 2022 and January 2024 Updates. These decisions arise from the allision between the lead barge (of eleven barges) in tow of the tug KIEFFER E. BAILEY, owned and operated by Marquette, with the I-30 Bridge’s protection cell on the Arkansas River. After the allision, the barges separated from the tug, floated downriver, and allided with one of the protection cells of the Clinton Pedestrian Bridge, owned by the City of Little Rock. The cause and extent of damage were heavily disputed, and the City sought damages in the amount of $6,542,195 to install a replacement cell. Little Rock brought this action against Marquette in Arkansas federal court, and the parties filed cross-motions for summary judgment. Little Rock argued that Marquette was negligent because it failed to rebut the presumption of negligence from THE OREGON Rule (moving vessel allides with a stationary object). Judge Miller denied the motion, noting there were fact disputes whether Marquette rebutted the presumption on nearly all of the circumstances surrounding the incident, including the conditions of the river, the qualifications of the crew of the tug, the reasonableness of the actions of the crew, and the navigability of the river due to construction on the I-30 Bridge. Judge Miller also denied Little Rock’s motion with respect to limitation of liability, noting that the issues of negligence and unseaworthiness were disputed as well as whether the crew was fit to navigate the Arkansas River. Marquette moved for summary judgment on causation and damages, arguing that the allision did not cause any damage to the cell because it had already been rendered obsolete by environmental wear and tear and lack of maintenance. It also argued that even if the allision did cause damage to the cell, it should not have to pay for a replacement because the cell had depreciated to a worthless state before the allision. In light of the dispute in the evidence, Judge Miller denied Marquette’s motion, and the case proceeded to trial.
Marquette argued that the protection cell tipped over because the soil surrounding the cell’s base had severely eroded without being replenished. Nonetheless, Judge Miller found that the impact of the allision was enough to overturn the cell regardless of the soil level. He accepted Little Rock’s claim for replacement cost of $3,046,577 (although it did not fully bid out the project), and he declined to depreciate the amount for replacement, reasoning that there is no ready market for protection cells, there was no testimony on the average useful life span for a cell, and the cell was serving its function and would have continued to do so for the foreseeable future. Judge Miller rejected the claim for the cost of Little Rock’s contractor to remove the damaged cell ($2,150,000), believing the testimony of the representative of another contractor that his company would remove the damaged cell for $550,000. Judge Miller awarded Little Rock $762,416 for engineering, permitting, and design costs and $5,626 for the cost of the post-allision inspection. However, he held that Little Rock did not show that $577,200 for retention and sheet pilings was reasonable and necessary. Accordingly, he awarded the city $4,364,618.
Peter and Jessica Barker, residents of California, took a trip in March 2023 to the South Pacific with their children and friends. The group chartered a 50-foot catamaran from Dream Yacht Charter, a Mauritian corporation, and its subsidiary, Dream Yacht Americas, a Maryland corporation. The Barkers were sailing through the islands surrounding Raiatea, French Polynesia, when Peter fell three or four feet through the deck into the hull of the catamaran, injuring his leg. The Barkers brought this suit against Dream Yacht Charter and Dream Yacht Americas in federal court in Maryland, asserting jurisdiction based on diversity and admiralty, and alleging claims for negligence for failure to keep the catamaran in a safe condition. Dream Yacht Charter moved to dismiss the suit for lack of personal jurisdiction and, alternatively, the defendants moved to dismiss the case on the ground of forum non conveniens. Judge Bennett noted that the bareboat charter for the catamaran was entered into by one member of the traveling party, John Ziskind. The charter was not a “model of clarity,” referring to both Dream Yacht Charter and Dream Yacht Americas and listing Maryland and Mauritian addresses. Although Dream Yacht Charter argued that it did not do business in Maryland, Judge Bennett rejected the claim based on the references in the website and contract to Maryland and Mauritian addresses for the companies, indicating that the companies were not distinct entities and that Dream Yacht Charter was purposefully operating in Maryland through its subsidiary. The defendants had better success with their motion to dismiss on the basis of forum non conveniens, citing the forum-selection clause in the charter that [a]ny legal action arising under or in connection with this contract will be adjudicated in Port Louis, Mauritius. The Barkers argued that they did not enter into the charter and the forum-selection clause was not reasonably communicated to them, citing the test applicable to passengers on cruise ships. The defendants answered that the reasonably communicated test did not apply to bareboat charters for yachts, and Judge Bennett agreed. He reasoned that with a bareboat charter for a yacht, the charterer is the owner pro hac vice of the vessel for the term of the charter, like a contract for a rental car. The contracting party understands that he is responsible for the safe operation of the rented equipment, safety of the passengers, and the itinerary of the vessel. In contrast, the passenger on a cruise line exchanges responsibility for safety for the non-negotiable itinerary and other features of the cruise. Although the Barkers sought to compare the booking by Ziskind to that of a broker so that the owner would have to communicate the terms of the charter to the entire traveling group, Judge Bennet answered that the argument “failed to bridge the doctrinal gap between passenger tickets for cruises and bareboat charters for yachts. Therefore, Judge Bennett held that the forum-selection clause was mandatory and reasonable, and he dismissed the suit on the basis of forum non conveniens. See May 2026 Update.
The Barkers moved for reconsideration on the ground that Judge Bennett committed a clear error of law when he held that the reasonably communicated test does not apply in the context of bareboat charters. Judge Bennett answered that the disagreement with the prior decision is not a valid basis for reconsideration. The Barkers added that the statute of limitations had now run on their maritime negligence claim, but Judge Bennett answered that the expiration of the statute of limitations does not amount to manifest injustice under Rule 59(e). Accordingly, he denied the motion for reconsideration, and the Barkers filed a notice of appeal on May 28, 2026.
On July 13, 2023, Gale Keel and James Kazen were finishing a day of halibut fishing in Kazen’s 18-foot FishRite open-top recreational sportfishing vessel. The vessel was anchored on the Seldovia flats, Kachemak Bay, near Homer, Alaska. Their vessel was struck by the HELENKA B, a 154.4-foot commercial vessel owned by Alaskan Coastal Freight (owned by Anna and Bruce Flanigan). The HELENKA B was operated by Captain Shea Robinson, who had not posted a lookout on the bow. The allision resulted in the sinking of the fishing boat and injuries to Keel, who was thrown into the cold (52 degrees) water. Keel brought this suit against the HELENKA B, in rem, and Alaskan Coastal Freight, Anna Flanigan, and Bruce Flanigan, asserting counts for negligence and negligent infliction of emotional distress and sought actual damages and exemplary damages (the negligence count asserted: “Defendants’ reckless actions injured Plaintiff.”). After Keel died, her Estate was substituted as the plaintiff. The defendants moved for partial summary judgment with respect to the demand for punitive damages, and Magistrate Judge Scoble noted that punitive damages are “generally disfavored and are ‘rarely imposed.’” The defendants compared this case with the Ninth Circuit’s decision in Bergen v. F/V ST. PATRICK, in which the court reversed an award of punitive damages for a vessel that set sail without licensed officers, noting that the violation was per se negligent but insufficient to constitute the requisite willful or wanton conduct to justify punitive damages. The Estate countered that Captain Robinson was violating the Rules by failing to post a lookout in a high trafficked area, although the defendants argued that Captain Robinson did not believe a lookout was necessary. Although Magistrate Judge Scoble did not believe that the conduct was equal to the conduct that has merited punitive damages, he declined to dismiss the case (without prejudice), because the court is going to hear evidence about the navigation of the HELENKA B and can weigh the severity at that time. Magistrate Scoble did, however, agree to dismiss the negligence claims against the Flanigans. They were not on the vessel, and the assertion that Bruce was negligent in training Captain Robinson (who did not appoint a lookout on the bow) was insufficient because there was no evidence whether training would cover this topic or whether he was following any instructions.
This litigation arises from the allision between the DALI and the Francis Scott Key Bridge. The owner and manager of the DALI, Grace Ocean Private and Synergy Marine, brought this action seeking exoneration/limitation in federal court in Maryland, and Judge Bredar issued a Protective Order governing the use of confidential information in the litigation. The parties sought to amend the protective order to accommodate the concerns of the National Transportation Safety Board, which conducted an investigation of the allision, that the Protective Order did not adequately cover its documents. Although Judge Bredar expressed his intent to accommodate the interests of the NTSB to the extent feasible, he balanced the interests of the parties and NTSB with the public’s presumptive right of access to the judicial process. He explained that the proposal would “permit parties to file documents wholly under seal, without any publicly viewable version, so long as the documents contain any confidential information.” Judge Bredar warned that “any request for a protective order that contemplates wholesale sealing of documents—as opposed to the application of carefully limited redactions—will likely be denied.” Therefore, he denied the request without prejudice. See February 2025 Update.
After the limitation action was filed, Judge Bredar accepted security of $43,671,000 and issued a stay of litigation against the petitioners and the vessel arising from the allision (except in the limitation action). Claims were brought on behalf of individuals and putative classes. The United States brought a claim but subsequently reached a settlement with the petitioners. Motions were then filed by the State of Maryland, Maryland Transportation Authority, Maryland Port Administration, Maryland Department of the Environment, and ACE American Insurance Co., requesting that the stay be lifted to permit the State claimants and ACE (asserting subrogation for payments to the State claimants) to pursue contractual and statutory claims outside of the limitation action as their claims fell outside of the scope of the limitation statute. The claimants argued that they were asserting claims for breach of contract and pursuant to state environmental statutes that are not subject to limitation, and the vessel interests responded that policy considerations favored maintaining the concursus of claims. Judge Bredar assumed arguendo that the claims fell outside the scope of the limitation statute, but he decided to exercise his discretion to decline to lift the stay. First, he believed that it was important to maintain the concursus because it protects both the vessel interests and claimants--to “ensure that all claimants, not just a favored few, will come in on an equal footing to obtain a pro rata share of their damages.” Judge Bredar was also concerned about the risk of inconsistent judgments, reasoning that findings in separate litigation could have issue-preclusive effect in the limitation proceeding, which would undermine the exclusive jurisdiction of the federal court. He added that the claimants had not presented any stipulations that would adequately protect the vessel interests’ right to seek limitation. He did not “consider it equitable to set certain Claimants loose to pursue the merits of their claims—and, perhaps, obtain favorable judgments—while all other Claimants are required to wait and abide by the schedule set by this Court,” particularly when it was conceivable that there could be insufficient insurance to satisfy all losses. Finally, Judge Bredar explained that he was pursuing a practical, pragmatic procedure directed to determination of the critical limitation issue. He did not want parallel proceedings to interfere with this endeavor. If limitation is denied, he expected that he would then “set Claimants free to pursue any remaining claims in any court of competent jurisdiction.” See April 2025 Update.
The limitation action was brought by the owner and manager of the DALI, Grace Ocean Private and Synergy Marine, on April 1, 2024, and notice was provided for the filing of claims with a deadline of September 24, 2024. A group of cargo interests moved for an extension of the deadline, and Judge Bredar agreed to the extension but added: “In no event shall any late filed cargo claim be accepted after November 22, 2024.” Almost a year after the deadline (on November 5, 2025), United Source One sought leave to file a claim for loss of cargo carried on the DALI, arguing that it did not receive notice of the deadline for filing claims. United Source One asserted that it notified its cargo insurer, Tokio Marine America Insurance Co., of its claim on April 1, 2024, but the insurer did not notify it of the deadline to file a claim in the limitation action. Tokio Marine denied the claim on December 5 or 6, 2024, and United Source One engaged counsel to negotiate with Tokio Marine. In the meantime, a group of cargo interests insured by the Tokio Marine family of companies filed claims in the limitation action within the extended deadline. When United Source One’s negotiations with Tokio Marine failed, United Source One sought leave to bring its claim for $370,363 in the DALI limitation action. Judge Bredar accepted that United Source One was unaware of the deadline, but he also held that it had adequate notice of the deadline and had not identified a sufficient reason for the delay in filing the claim. Judge Bredar also found that allowing the late claim may prejudice the petitioners’ rights with trial set to begin in less than six months, even though United Source One’s interests were essentially identical to those of other cargo claimants who timely filed claims. He noted that United Source One retained counsel to negotiate rather than litigate in order to avoid incurring expense, and he explained that the fact that its “risk/benefit assessment failed to pan out does not obligate the Court to permit further complication of an already very complex case.” Judge Bredar added that he concurred with the petitioners that “it would set a bad precedent—particularly in a case that received such extensive media attention—to allow a Maryland corporation, which is based in the geographical area where notice of the deadline was published, to permit the filing of an extremely late claim.” Accordingly, Judge Bredar denied leave to file the late claim, and United Source One filed a notice of appeal to the Fourth Circuit (two pro se claimants who were not allowed to file a late claim also filed a notice of appeal).
With trial scheduled to begin with respect to the entitlement to limitation of liability on June 1, 2026, the claimants moved for summary judgment on the standing of Synergy Marine, as manager, to seek limitation of liability. Judge Bredar noted that the party seeking limitation must have the equivalent of the interest of the owner or owner pro hac vice, displaying “a high degree of ‘dominion and control’ over the vessel.” He added that few of the cases have held one factor to be dispositive and that they have not clearly specified how the various factors should be weighed against each other—suggesting a “totality-of-the circumstances type test, in which the Court takes a holistic view of the ship manager’s relationship to the vessel in determining whether there was a transfer of ‘possession, command, and navigation’ sufficient to generate owner pro hac vice status on the part of the manager.” The claimants’ primary argument was that Grace Ocean had the financial responsibility for the operation of the DALI, reimbursing it for its costs and indemnifying and insuring it. Without a financial risk, Synergy lacked the key attribute of ownership and “the raison d’etre for the Limitation Act.” Synergy answered that the documents for compliance with the International Safety Management Code reflected that Synergy assumed responsibility for the operation of the ship with the duties and responsibilities imposed by the ISM Code. Agreeing that the insurance and reimbursement provisions were necessary because Synergy’s control over the vessel was sufficiently substantial to expose it to an owner’s risk of liability, Judge Bredar did not consider the financial arrangements to be dispositive. Turning to the actual management, Synergy recruited and trained the crew and supported the crew in navigating the vessel, but Grace Ocean paid them and executed crew employment contracts. The Ship Management Agreement also provided that Synergy would supervise the maintenance and coordinate daily operations with the shipboard management team. Although it was the time charterer, Maersk, that determined where the vessel would call to load and discharge cargo, the master of the DALI relied on Synergy for guidance if the vessel needed to divert for weather or other issues. Weighing all of the factors, Judge Bredar held that Synergy presented sufficient evidence of dominion and control to defeat the motion for summary judgment on its standing to bring the limitation action. See February 2026 Update.
Patrice W. Mansell, d/b/a Mansell’s Cargo Unloading filed a suit (pro se) in Maryland federal court against Synergy Marine and Grace Ocean on April 23, 2026, seeking to recover seeking to recover economic damages to the plaintiff’s business as the result of the destruction of the Key Bridge from the DALI allision. Explaining that the claim should have been brought in the limitation action by September 24, 2024 and that the plaintiff had not responded to the court’s direction to show cause why the complaint should not be dismissed, Judge Bredar dismissed the suit without prejudice. See Mansell v. Synergy Marine Pte Ltd., No. 1:26-cv-1587, 2026 U.S. Dist. LEXIS 118481 (D. Md. May 28, 2026) (Bredar).
In a separate suit brought in Pennsylvania federal court by Grace Ocean and Synergy Marine against the South Korean shipbuilder of the DALI, Hyundai Heavy Industries, asserting claims for products liability, breach of implied warranties, negligent misrepresentation, negligence, and indemnity and contribution, Judge Scott dismissed the suit based on forum non conveniens as a result of a London arbitration clause in a Settlement Agreement entered into between Grace Ocean and Hyundai Heavy Industries in 2021 related to claims pertaining to the ship’s construction and warranty after the original owner of the DALI transferred ownership to Grace Ocean. See Grace Ocean Private Ltd. v. Hyundai Heavy Industries Co., No. 2:25-cv-4374, 2026 U.S. Dist. LEXIS 172371 (E.D. Pa. Aug. 3, 2026) (Scott).
Back in the limitation action, Judge Bredar then tackled the issue that “has loomed large over these proceedings since their early days”—the economic loss rule derived from Robins Dry Dock. Petitioners Grace Ocean and Synergy Marine moved for judgment on the pleadings as to all purely economic loss claims. By this time, the parties had settled many of the pending claims, including all wrongful death and personal injury claims, all property damage claims, all cargo claims (except one pro se claim that was dismissed for lack of prosecution), and the claims of the United States, the State of Maryland, and the State’s primary insurer. This left two categories of claims pending in the limitation action, those filed by local government claimants (the City and County of Baltimore) and private economic loss claimants. The petitioners argued that Robins Dry Dock precludes recovery for economic loss resulting from physical damage to property in which the claimants do not have an proprietary interest, and the remaining claimants did not have an ownership or other recognizable interest in the Key Bridge or other damaged property. The claimants responded that deciding the economic-loss issue before ruling on the petitioners’ limitation claim would violate the Saving-to-Suitors Clause, that they did have a sufficient proprietary interest in damaged property, and that the court should apply Maryland law, which they asserted would allow recovery. The claimants argued that courts have rejected efforts to “inject ancillary or non-Limitations Act issues into a Limitation Act proceeding,” but Judge Bredar answered that this case would not be the first to address the effect of Robins Dry Dock on economic loss claims before a determination of the right to limit liability, noting that the courts that have deferred ruling have based the decision on prudency and efficiency, not prohibition. The “practical realities” shifted with the settlements, leaving the great bulk of claims presenting the economic loss question. As there was no prohibition on deciding the issue, Judge Bredar proceeded to address the claims of the City, the County, and the private economic loss claimants. Applying Robins Dry Dock to the claims of the City of Baltimore, Judge Bredar ruled that the City could assert claims related to the damage to the water main it owns, lying beneath the collapsed Bridge. However, the City’s claim was dismissed for the remainder of its damages, including increased maintenance and repair costs resulting from damage to its streets and lost tax revenue from reduced local business activity, as the City did not establish a proprietary interest in the Bridge. The City argued that its local ordinance precluded application of the economic loss rule to its claims (enacted in 2024 in the wake of the allision), and the petitioners argued that the ordinance was an unconstitutional bill of attainder and exceeded the City’s authority. Judge Bredar did not have to decide whether the ordinance was a bill of attainder (with insufficient information); however, he concluded that the ordinance exceeded the legislative authority delegated to the City and was void. The City also argued that Robins Dry Dock did not apply because the damages were caused by the petitioners’ intentional acts. Judge Bredar answered that the exception to Robins Dry Dock cited by the City was “not for intentional conduct generally, but for situations where the wrongdoer intentionally targeted a plaintiff’s economic interests.” Even if the City claimed that the petitioners acted intentionally in operating the vessel’s fuel pumps in an unsafe manner, there was no allegation that the petitioners intentionally targeted the City’s economic interests (Judge Bredar also dismissed the City’s public nuisance claim for the same reasons discussed with the County’s claim, noted later). Turning to the claims of the County, the County argued that it had property interests in the surface waters, sediments, shorelines, and other components of its waterways, rather than in the Patapsco River per se. Judge Bredar held that, based on the evidence presented, the County could continue to assert claims for direct physical damage to any waterways and shorelines in which it can demonstrate a property interest (with economic loss flowing from damage thereto), but that did not include unrelated damages (resulting from the damage to the Bridge), including response and search-and-rescue efforts. Judge Bredar then considered the County’s arguments based on exceptions to Robins Dry Dock. The County argued that its response costs were recoverable under the “loss-shifting” exception when a non-owner has undertaken the risk of loss caused by the maritime tortfeasor (such as the time charterer that agrees to pay the owner for use of the vessel when the vessel is being repaired). The petitioners responded that the Free Public Services Doctrine barred recovery of public-safety related costs, regardless of whether the risk of loss was shifted to the County (“the cost of public services for protection from safety hazards is to be borne by the public as a whole, not assessed against the tortfeasor whose alleged negligence creates the need for the service”). Judge Bredar did not have to decide the issue, ruling that the County did not show that this right was contractually shifted from the State to the County. He also dismissed the County’s claim for search-and-rescue costs for lack of authority that they constituted an exception to the application of Robins Dry Dock. Turning to the County’s cause of action for public nuisance, Judge Bredar noted that the County did not allege that the claims for were economic loss but were equitable claims for injunctive relief. The County alleged that the petitioners created a danger and hazard by causing damage to the waterways and shorelines, but it did not plead any ongoing condition that required abatement. Accordingly, Judge Bredar dismissed the nuisance claim. The County also asserted a claim under the Oil Pollution Act for response costs, but Judge Bredar rejected the claim because the costs have to be incurred during and after removal activities caused by a discharge of oil. Although there was a discharge of oil, the response costs were not related to the discharge of oil and were not recoverable under OPA. Finally, Judge Bredar addressed the claims of the private economic loss claimants. Subrogees of Ports America Chesapeake and a class of longshore workers argued that they had a contractual relationship with the petitioners based on the Baltimore Marine Terminal Association Tariff Schedule Contract, but Judge Bredar answered that the contract was of the wrong kind—it was not between a claimant and the owner of property that was damaged as in the charter party between the charterer and the owner of the vessel that was damaged. The claimants asserted tort claims, not contract claims. Judge Bredar also dismissed the two class actions filed by private economic loss claimants (businesses that sustained economic losses or increased costs and longshore workers) on the ground that Supplemental Rule F requires that each claimant appear individually. The only exception to the dismissal of private economic loss claimants was container claimants who alleged physical damage to their property.
From the state courts
SBA operated a barge cleaning facility at a shipyard in Jennings, Louisiana from 1965 to 1993. During that time, barges owned by National Marine, predecessor to American Commercial Barge Line (ACBL), were delivered to the facility to be cleaned. The Environmental Protection Agency declared the site to be a Superfund site, and it designated ACBL as a potential responsible party under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) with respect to hazardous substances and pollutants at the shipyard. ACBL entered into an agreement with the EPA and brought this declaratory judgment action in state court in Marion County, Indiana against Starr Indemnity and other insurers seeking coverage under four umbrella policies with respect to the contamination. The insurers filed a counterclaim in 2021, seeking a declaration that the policies were governed by New York law. In 2024, the insurers first suggested that admiralty law applied to the policies. ACBL moved for partial summary judgment on choice of law, arguing that the policies are governed by Indiana law. The insurers responded that the polices are maritime contracts and that admiralty law applies. They also argued that the watercraft exclusion barred coverage. Superior Court Judge Klineman agreed with ACBL that the policies are not maritime contracts, that Indiana law applies to the policies, and that ACBL’s claims are not excluded by the watercraft exclusion. The insurers appealed, raising two issues: whether to apply admiralty law or Indiana law to the policies and whether the watercraft exclusion bars coverage for ACBL’s liability for environmental contamination at the shipyard. Writing for the Indiana Court of Appeals, Judge Najam noted that the insurers had only argued that the policies were maritime contracts but had “intentionally not conducted the two-stage analysis [required by Wilburn Boat] both to determine whether the excess polices are maritime contracts and, if so, to what extent federal admiralty law applies.” As the case has been pending for five years and the insurers “failed to make a cogent argument supported by authorities,” Judge Najam held that the insurers waived the argument on choice of law. Turning to the question whether the watercraft exclusion for “liability arising out of the ownership . . . [or] maintenance . . . of any watercraft” bars coverage for the environmental contamination at the shipyard, Judge Najan focused on the meaning of the phrase “arising out of.” Judge Najam explained that liability was imposed under CERCLA “because of ACBL’s relationship to the contaminated shipyard site, regardless of ACBL’s fault or negligence.” Thus, the court had to interpret the phrase “liability arising out of” in the context of strict liability, not negligence. Thus, an inquiry into negligent causation was inappropriate. Judge Najan reasoned that ACBL’s liability under CERCLA arose out “the delivery of barges owned by ACBL’s predecessor to the shipyard for cleaning, which, in turn, triggered the watercraft limitation on coverage.” Judge Najam added: “The liability did not arise out of, and was not contingent upon, either the subsequent cleaning of the barges or, as ACBL alleges, the improper storage, handling, and treatment of hazardous material at the shipyard.” Finding the phrase “arising out of” to be unambiguous under Indiana law, Judge Najam held that, under Indiana law, the watercraft exclusion precluded coverage for ACBL.
Christian Steffens is the owner of the vessel WINDANCE that he moored in Newport Harbor, California. On July 5, 2025, he was notified by the Newport Beach Harbor Patrol that his vessel was taking on water. Steffens alleges that he responded that he was bringing a pump and that no salvage efforts should be undertaken. However, when he arrived, the water had been pumped out and the vessel was secure at its mooring. Three days later, Steffens was presented with an invoice in the amount of $14,570 from Pacific Towing d/b/a TowBoatUS Newport Beach (and its owner David D. Lamontagne) along with a salvage agreement dated three days earlier (July 5, 2025). Steffens brought this suit in state court in Orange County, California against Pacific Towing and Lamontagne, seeking a declaration that the salvage charges were unreasonable and unauthorized and that no salvage occurred because there was no contract and the vessel was not in peril. In their answer, the defendants asked for a salvage award. The parties submitted evidence to Judge Hesseltine, who ruled that there were “adequate grounds for reasonable apprehension of injury or destruction to the vessel if the salvage services were not rendered” and that the salvage services were voluntary and successful. Judge Hesseltine also ruled that Pacific Towing had established that its rates are competitive and that Steffens’ insurer paid a similar claim based on those rates in the prior year. Therefore, the court denied relief to Steffens but declined to give an award for salvage to Pacific Towing because defendants cannot make affirmative claims for relief in their answer.
Kenneth G. Engerrand
Brown Sims, P.C.
Houston 1990 Post Oak Blvd Suite 1800 Houston, TX 77056 O 713.629.1580
New Orleans 365 Canal Street Suite 2900 New Orleans, LA 70130 O 504.569.1007
Gulfport 1915 23rd Suite B Gulfport, MS 39501 O 228.867.8711
Miami 2801 SW 149th Ave Suite 120 Miramar, FL 33027 O 305.274.5507
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This month we recognize Justice Oliver Wendell Holmes’ comparison of a vessel and a dog in deciding whether one or more vessels (flotilla) must be surrendered in a limitation proceeding in Liverpool Brazil & River Plate Steam Navigation Co. v. Brooklyn Eastern District Terminal, 251 U.S. 48 (1919):
The notion as applicable to a collision case seems to us to be that if you surrender the offending vessel you are free, just as it was said by a judge in the time of Edward III, "If my dog kills your sheep and I freshly after the fact tender you the dog you are without recourse against me."
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© Kenneth G. Engerrand, August 31, 2026; redistribution permitted with proper attribution.
