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September 2021 Longshore/Maritime Update

August 31
2021

September 2021 Longshore/Maritime Update (No. 268)

Notes from your Updater:

On August 5, 2021, the Fifth Circuit agreed to rehearing in the appeal addressing whether there was removal jurisdiction in the suits by Louisiana parishes against several oil and gas companies in connection to their drilling of wells from barges and the dredging and maintenance of networks of canals to access those wells. The panel originally affirmed the remand of the cases to state court; however, on rehearing, the panel held that the removal was timely and remanded the case to the federal district courts to determine whether there was federal-officer removal jurisdiction under the Fifth Circuit’s Latiolais decision (see March 2020 Update). Parish of Plaquemines v. Chevron USA, Inc., No. 19-30492 (5th Cir. Aug. 5, 2021) (Ho).

On August 6, 2021, a jury in the Southern District of Florida returned a verdict in the amount of $1,524,987.50 in a suit brought by the owner of the JESSICA, which sank off the coast of Panama, against its insurance brokers for failing to procure policies covering the vessel. Astor Global, Inc. v. Lally, No. 1:19-cv-23904. Chief Judge Moore entered judgment in the amount of the verdict on August 25, 2021.

Verdict

The efforts to restart the cruise industry that were discussed in the June and July 2021 Updates continue. In Norwegian Cruise Line Holdings, Ltd. v. Rivkees, No. 1:21-cv-22492 (S.D. Fla. Aug. 8, 2021) (Williams), Judge Williams granted a preliminary injunction to cruise lines, enjoining the Surgeon General of Florida (head of the Florida Department of Health) from enforcing a Florida law that would prohibit cruise lines from requiring passengers to provide documents certifying that they had been vaccinated for COVID-19 or had recovered from the disease.

On August 11, 2021, the Fifth Circuit reversed the dismissal (based on the running of the statute of limitations) of the suit brought by Petrobras America against Korean shipbuilder Samsung Heavy Industries for fraud based on Samsung’s alleged bribery of Petrobras executives to complete a drilling contract with Pride Global Limited that was a lynchpin to Samsung’s contract to build a drilling vessel for Pride. Petrobras America, Inc. v. Samsung Heavy Industries Co., No. 20-20338 (5th Cir. Aug. 11, 2021) (per curiam).

In our August 2021 Update we advised that the Ninth Circuit held that Congress did not intend to create a private cause of action in the Rivers and Harbors Act that would permit a commercial charter business to contest landing fees charged by the City and County of San Francisco for South Beach Harbor. See Lil’ Man in the Boat, Inc. v. City and County of San Francisco, No. 19-17596, 2021 U.S. App. LEXIS 20953 (9th Cir. July 15, 2021) (Christen). On August 20, 2021, the full court declined to grant rehearing en banc.

In our May 2021 Update we discussed the decision of the Ninth Circuit in Seachris v. Brady-Hamilton Stevedore Co., No. 18-71807 (9th Cir. Apr. 19, 2021) (Tashima). The Ninth Circuit reversed the decision of Administrative Law Judge Gee, rejecting the evidence submitted by attorney Charles Robinowitz in support of an hourly rate of $450 and awarding him fees at the hourly rate of $341.92. The Ninth Circuit remanded the case for further proceedings on the hourly rate and, sua sponte, ordered that the BRB reassign the case to a different ALJ on remand (Robinowitz had not asked for that relief as Judge Gee retired more than a year before the decision). On August 20, 2021, the Ninth Circuit again reversed an award to attorney Robinowitz by Judge Gee, citing Seachris, and again, sua sponte, directed the BRB to reassign the case to a different ALJ on remand, stating: “Because the ALJ’s tone, manner of evaluation, and reliance on Seachris do not give us confidence that Robinowitz received a fresh evaluation in this case, consideration by a new ALJ is warranted” (Judge Gee is still retired). See Wakeley v. Knutson Towboat Co., No. 19-70399, 2021 U.S. App. LEXIS 24929 (9th Cir. Aug. 20, 2021) (per curiam).

In our July 2021 Update we discussed the decision in Mickelsen v. Aramark Sports & Entertainment Services, Nos. 4:18-cv-00072, 2:18-cv-00158, 2021 U.S. Dist. LEXIS 106882 (D. Utah June 4, 2021) (Nuffer). The case involves the death of one occupant and serious injuries to other occupants in the explosion of the SUMMER PARADISE houseboat on Lake Powell. The explosion was caused by gasoline vapors that accumulated in the engine department that ignited when the occupants attempted to re-start the vessel’s generator. The source of the spill was a drain hose that had become detached and was resting in the engine compartment. Aramark entered into a Houseboat Management Agreement with the owners of the SUMMER PARADISE that included a 1-hour systems inspection between vessel trips. The question presented was whether the service required an inspection of the fuel overspill system so as to give rise to a duty to discover the drain hose that had become detached. The plaintiffs testified that they expected the agreement to provide for the inspection, and plaintiffs’ expert testified that the inspection was within the scope of the agreement. The plaintiffs also argued that, as the agreement was silent on what was required, a jury should be allowed to decide the issue. Judge Nuffer disagreed and held that the evidence was insufficient to establish that the limited inspection included every component on the vessel, including the drain hose. Judge Nuffer also held that there was insufficient evidence to establish that any prior work by Aramark on the vessel contributed to the explosion. Therefore, he dismissed the claims against Aramark. The plaintiffs moved for consideration of additional facts and law, but, on August 20, 2021, Judge Nuffer still granted summary judgment to Aramark. Judge Nuffer then certified two controlling questions of law for an immediate appeal: 1) whether there was a genuine issue of fact that inspection of the houseboat’s fuel overspill equipment was within the scope of Aramark’s undertaking to perform a 1-hour mechanical check of the vessel and 2) whether Aramark’s modification of the drain pan on the houseboat’s fuel overspill system was a legal cause of the explosion.

On the LHWCA Front . . .

From the federal district courts:

Longshore worker assigned to drive a jockey truck that was struck by a truck driven by an employee of a third party was not entitled to summary judgment when there was an issue of the longshore worker’s comparative fault; Brown v. SSA Atlantic, LLC, No. 4:19-cv-00303, 2021 U.S. Dist. LEXIS 145195 (S.D. Ga. Aug. 3, 2021) (Baker).

Opinion

John Brown, Jr., a longshore worker employed by Ports America in Savannah, Georgia, was assigned to drive a jockey truck. As he entered a truck, he saw a seat cushion in the cab, and he assumed that someone else was using the truck. Brown backed out of the truck and was standing on a portion of the truck talking to an employee of the truck yard, when Byron Childs, who was driving a truck for his employer, SSA Atlantic, realized that he had left his seat cushion behind and drove his truck to retrieve it. Childs tried to park next to Brown’s truck but “misjudged” the space and collided with Brown’s truck, causing Brown to fall. Brown brought this action against SSA Atlantic and moved for summary judgment on the liability of the defendant based on the testimony of Childs that he misjudged the space between the trucks. SSA Atlantic opposed the motion, asserting comparative fault of Brown in several ways. Applying Georgia law, Judge Baker agreed with Brown that any comparative fault on the part of Brown was not a complete defense; however, Brown could not cite a case where a Georgia court granted summary judgment on liability of the defendant when there was a fact question of the comparative fault of the plaintiff. Judge Baker therefore held that the liability of both parties would be submitted to the jury.

Vessel owner did not violate Scindia duties in connection with injury to ship repairer; In re Canal Barge Co., No. 20-1771, 2021 U.S. Dist. LEXIS 145680 (E.D. La. Aug. 4, 2021) (Ashe).

Opinion

Canal Barge sent its barge CBC 763 to Basin Fleeting for repair work that including reworking the hatches on the barge. Before the barge could be returned to Canal, it had to undergo an air pressure test to ensure that the hull was watertight. Christopher J. Landry, an employee of Basin Fleeting, conducted a preliminary test and realized that a hatch was leaking. He changed the O-ring and gasket on the hatch cover and then conducted the test with representatives of Canal and the American Bureau of Shipping in attendance. The hull did not fill up fast enough, so Landry went to tighten down the hatch, but the cover flew off and struck him in the head. Canal Barge brought this limitation action, and Landry made a claim, asserting that the injury occurred because the T-bolt chosen by Canal Barge to hold down the hatch cover was defective, in violation of Canal’s Scindia duties. Canal moved for summary judgment, and Judge Ashe held that Canal had not violated any of the duties. With respect to the turnover duty, neither party was aware of a defect, the marine surveyor did not discover a defect, and a visual inspection would have been insufficient to discover a flaw. Therefore, Canal could not have known or been aware of a defect at the time of the turnover of the barge. Landry argued that Canal retained active control over the supply of replacement T-bolts; however, Canal was not involved in the air pressure test other than as an observer, relying on Landry to safely perform the test. Judge Ashe did not consider merely supplying the bolt to be the same as retaining active control. Finally, Landry argued that Canal’s representative should have exercised his stop-work authority to prevent Landry from tightening the hatch during the test. However, the representative did not observe Landry go to tighten the hatch and had no knowledge of a defect in the bolt. Consequently, Canal did not violate the duty to intervene.

Testimony of longshore workers created a fact question whether there was a duty to provide lighting to longshore workers who were lashing on the deck of the vessel; Woldegiorgis v. NYK Ship Management, No. 18-cv-07678, 2021 U.S. Dist. LEXIS 147196 (N.D. Cal. Aug. 5, 2021) (Tse).

Opinion

Bereket Woldegiorgis, a longshore worker employed by SSA Terminals in the port of Oakland, California, was injured while lashing on the M/V NYK THESEUS. Woldegiorgis brought this action in federal court in the Northern District of California against the owner/operator of the vessel, and the defendant moved for summary judgment on the ground that it did not have a duty to provide adequate lighting to longshore workers who were lashing on the deck, citing safety standards and regulations. Woldegiorgis responded with the testimony of several experienced longshore workers and the testimony of an employee of the Port, who stated that the custom and practice for cargo vessels in West Coast ports is to provide lighting for the longshore workers. Accepting that custom can give rise to a duty under the LHWCA, Magistrate Judge Tse held that there was a fact dispute, not a legal dispute, for a jury to decide whether the vessel owner breached a duty to Woldegiorgis.

Worker injured on OCS platform sufficiently alleged negligence against defendant and did not have to replead; Parkman v. W&T Offshore, Inc., No. 20-883, 2021 U.S. Dist. LEXIS 148225 (M.D. La. Aug. 6, 2021) (deGravelles).

Opinion

Jason Parkman was injured on August 25, 2018, while working for Helmerich & Payne on a fixed platform on the outer Continental Shelf off the Louisiana coast. He received LHWCA compensation within a month of his accident and continued to receive LHWCA benefits. More than a year after the accident, on November 20, 2020, Parkman filed suit against Helmerich & Payne, W&T Offshore, Baker Hughes, and Halliburton, asserting claims under Louisiana law (through the Outer Continental Shelf Lands Act) and, alternatively, under the Jones Act and general maritime law as a seaman. Parkman claimed to be assigned to a vessel, but he did not name the vessel, give its location, state his position on the vessel, or state how the vessel contributed to the accident. The case was removed to the federal court for the Middle District of Louisiana, where Parkman filed a motion to declare that his claims were timely. Citing the Cormier decision from the Fifth Circuit (holding that the voluntary payment of benefits under the LHWCA interrupts prescription against all solidary obligors), Judge deGravelles rejected the defendants’ efforts to distinguish the case or to overturn it as wrongly decided and held that Parkman’s claims were timely filed. (See July 2021 Update). Judge deGravelles then addressed the arguments of the Helmerich & Payne defendants that Parkman’s “substantial certainty” claim under Louisiana law was barred by the exclusive remedy provision of the LHWCA. Judge deGravelles noted that the Fifth Circuit has never held that there is an exception to the exclusive remedy for intentional torts, but several district courts in the Fifth Circuit and Louisiana state courts have held that an employee may maintain an intentional tort claim against the LHWCA employer as long as there is a specific intent to injure the worker. Judge deGravelles then reasoned that if the court were to consider such an exception, the allegations would have to be far more specific than the conclusory allegations alleged by Parkman in this case. Consequently, Judge deGravelles dismissed the state claim against the employer defendants for failure to state a claim. (See August 2021 Update). Challenges to Parkman’s pleading continued when Halliburton moved to dismiss Parkman’s vague allegations against Halliburton or, alternatively, Halliburton moved for a more definite statement. As Parkman did not name the vessel, give its location, state his position on the vessel, or state how the vessel contributed to the accident, Judge deGravelles dismissed the Jones Act and general maritime law claims against Halliburton. With respect to the allegations of negligence, Parkman itemized fifteen specific acts and omissions that he cited against all of the defendants as causing his accident. Although Judge deGravelles noted that the allegations could be more specific as to the role and conduct of each defendant, he agreed with Parkman that the roles and actions of the defendants were in their possession and that more specific information could be obtained through discovery. Therefore, he denied the motion to dismiss or for a more definite statement with respect to the negligence action against Halliburton.

Evidence that a condition did not pose an unreasonable danger did not require dismissal of 905(b) claim; longshore worker presented sufficient evidence of violation of Scindia duties for claim arising from fall in urea spilled on the deck of a vessel during unloading; worker’s liability expert was allowed to testify as to the failure to establish a protocol for unloading and housekeeping and that the defendant’s supervisors should have used their stop work authority, but he was not allowed to testify that the defendant failed to clean the deck; Gusman v. Archer Shipping, Ltd., No. 20-984, 2021 U.S. Dist. LEXIS 148526, 148579 (E.D. La. Aug. 9, 2021) (Africk).

Opinion summary judgment

Opinion expert

Lloyd J. Gusman, Jr., was employed by Coast Cargo Company to assist in unloading a cargo of urea pellets from the KIRAN BOSPHORUS. During the operation, urea pellets spilled onto the deck of the KIRAN BOSPHORUS from the bucket being used to unload them. Gusman slipped and fell on the urea on the deck and brought this suit against the vessel owner under Section 905(b). Before addressing the standards under Scindia, the vessel owner argued that the risk posed by the pellets on the desk was not unreasonable and that Gusman could not recover absent an unreasonable danger. Although Judge Africk considered Archer’s authority for this argument to be “at best, unpersuasive,” he held that the citation to facts suggesting that the area did not pose an unreasonable risk was irrelevant at the summary judgment stage as there were sufficient facts that the urea presented an unreasonable risk. Turning to the Scindia duties, the vessel owner argued that the stevedore was using its own equipment to unload the vessel and was supervising Gusman at the time of his injury. Gusman, however, presented testimony that the vessel’s crew was responsible for cleaning the deck. As such, there was evidence to deny summary judgment on the active control duty. With respect to the duty to intervene, the vessel owner argued that the stevedore created the alleged hazard and that Gusman could not show actual knowledge on the part of the vessel. As there was evidence that Gusman and his co-workers communicated their concern about the deck to the crew, there was sufficient evidence for Judge Africk to deny summary judgment. Finally, the vessel argued that the open and obvious condition of the urea precluded recovery, but Judge Africk held that the open and obvious condition was a defense when the condition was created by the contractor in an area under the contractor’s exclusive control. As the control over the area was disputed, Judge Africk held that summary judgment was not appropriate. After denying summary judgment, Judge Africk addressed the vessel owner’s motion to exclude the testimony of Gusman’s liability expert, Robert E. Borison. The owner argued that Borison’s experience has focused on industries relating to exploration, production, and transport of oil and gas and on marine, general, and commercial industries, and that he lacks experience with respect to the procedures at issue in this case. Judge Africk considered that to be too exacting and ruled that cross-examination was the appropriate vehicle to raise that issue. Judge Africk also rejected the argument that Borison’s opinions should be excluded because they rest on incorrect or contradicted facts, holding that cross-examination was the vehicle to remedy any insufficiency. Consequently, Judge Africk agreed that Borison could testify as to the failure of the vessel owner to establish a protocol for unloading the ship’s holds and completing housekeeping priorities for the deck as well as the use of stop work authority by vessel supervisors. However, Judge Africk held that Borison’s opinions that the vessel supervisors failed to clean the deck would not be admitted as it would not aid in resolution of the issue. The facts would either establish that the deck was clean or that it was not.

Testimony contrary to opinion of liability expert went to the weight of the expert’s opinion, not its reliability; fact questions whether it was the accident or the worker’s failure to undergo immediate surgery that caused his subsequent problems prevented summary judgment on medical causation; Smith v. Transocean Offshore USA, Inc., No. 19-14738, 2021 U.S. Dist. LEXIS 155521 (E.D. La. August 18, 23, 2021) (Vitter).

Opinion expert

Opinion causation

Orlando Smith, an employee of Halliburton, brought this action against Transocean, owner of the DISCOVERER INSPIRATION, pursuant to Section 905(b) of the LHWCA, seeking to recover for injuries he sustained when he tripped over an unpainted and unmarked pipe rack stopper. Smith brought a Daubert challenge to Transocean’s liability expert, Captain Mike Jacobs, challenging the reliability of his opinion that Smith was solely responsible for his accident (arguing that the conclusion contradicted the testimony of witnesses in the case). Judge Vitter agreed with Transocean that Smith had made “no showing whatsoever” that Jacobs’ opinions were unreliable, reasoning that questions related to the bases and sources of the opinions affect the weight of the opinion not its admissibility. As Captain Jacobs’ knowledge of and application of regulations and standards to the defendant’s safety policies and procedures was sufficient, Judge Vitter denied the motion. Judge Vitter then addressed Smith’s motion for summary judgment on medical causation. Smith cited the testimony of his treating physicians that his right shoulder injury and elbow nerve damage resulted from his accident on the vessel. Transocean countered that Smith’s initial shoulder injury was caused by the accident, but that his subsequent complications and elbow nerve damage were attributable to Smith’s failure to undergo immediate surgery. As there were genuine issues of material fact whether the underlying accident caused Smith’s current shoulder and elbow problems, Judge Vitter denied the motion for summary judgment on medical causation.

Shipyard timely removed suit alleging that its employee died from lung cancer from exposure to asbestos; Pennino v. Reilly Benton Co., No. 21-363, 2021 U.S. Dist. LEXIS 161532 (E.D. La. Aug. 26, 2021) (Lemelle).

Opinion

Phyllis Pennino and Sally Pennino, the surviving spouse and child of Salvador Pennino, who died of lung cancer, brought this action in state court against his employer, Avondale, asserting that he contracted lung cancer from exposure to asbestos while building vessels at Avondale’s shipyard. Avondale did not immediately remove the action as the petition did not link Pennino’s exposures to any vessels Avondale built or repaired for the United States. On January 20, 2021, Lee McDaniel, III, a welder who worked at Avondale, was deposed and testified that he witnessed Pennino hanging ductwork on Lykes’ vessels while working at Avondale. Asserting that the Lykes’ vessels were built by Avondale under contracts with the Maritime Administration, Avondale removed the case under the Federal Officer Removal Statute. Agreeing that the deposition transcript was the first “paper” that established that Pennino had worked on Lykes’ vessels, Judge Lemelle held that the removal was timely and that Avondale had established a colorable federal defense necessary for removal under the statute.

From the administrative agency:

BRB changed course on audiologists as physicians under the LHWCA; Jones v. Huntington Ingalls, Inc., No. 16-0690, 55 BRBS 1 (Ben. Rev. Bd. July 30, 2021) (Buzzard).

Original opinion

Opinion on reconsideration

Our longsuffering readers know that we do not ordinarily review administrative decisions. In our January 2018 Update we discussed the decision of the Benefits Review Board in this case, holding that audiologists are not “physicians” for the purposes of Section 7(b) of the LHWCA. The panel in that case consisted of Administrative Appeals Judges Boggs, Gilligan, and Rolfe. The claimant filed a motion for reconsideration, and the replacement of Administrative Appeals Judge Gilligan by Administrative Appeals Judge Buzzard resulted in a change of course. With Judge Buzzard writing, the panel held that audiologists are physicians within the LHWCA so that claimants are entitled to an initial choice of treating audiologist. Chief Administrative Appeals Judge Boggs dissented and would have affirmed the original decision that audiologists are not physicians under the LHWCA.

And on the maritime front . . .

From the federal appellate courts:

Puzzling discovery answers in response to court order were grounds for dismissal with prejudice; In re DEEPWATER HORIZON, No. 20-30689 (5th Cir. Aug. 3, 2021) (per curiam).

Opinion

Plaintiffs in this case are eight plaintiffs who brought claims for injury for medical conditions arising from exposure to the oil spill from the DEEPWATER HORIZON/Macondo blowout. Judge Barbier issued a pretrial order (No. 68) requiring past and present information about the medical conditions of the plaintiffs in the B3 pleading bundle, which would be treated as interrogatory answers. After obtaining an extension, the plaintiffs responded with conflicting information, answering “N/A” or “Did not seek treatment” for the past and that they were still receiving treatment in the present. BP argued that the answers were noncompliant, and Judge Barbier issued a show-cause order requiring an explanation why the claims should not be dismissed for failing to comply with the order. The plaintiffs admitted that the answers were inconsistent and sought to cure the inconsistency by filing a revision saying that they “d[id] not recall” for their past treatment while continuing to assert that they were currently receiving treatment. Judge Barbier considered these responses to be “puzzling” and “hard to make sense of” and dismissed the claims with prejudice. The Fifth Circuit found both prongs of the requirement for dismissal with prejudice to be satisfied—a clear record of delay and that lesser sanctions would not serve the best interests of justice (Judge Barbier had tried a lesser sanction, the show-cause order, but it was unsuccessful). Therefore, the Fifth Circuit held that Judge Barbier did not abuse his discretion in dismissing the claims with prejudice (the appellate court noted that in the context of MDL proceedings, the court has greater flexibility and need not consider any aggravating factor for a dismissal with prejudice).

Insufficient excuse for failing to opt out of the settlement agreement in the DEEPWATER HORIZON/Macondo class action; In re: Deepwater Horizon (Green), No. 20-30617 (5th Cir. Aug. 9, 2021) (per curiam).

Opinion

Christopher Green was a member of a class of personal injury plaintiffs who claimed injuries while removing oil from the Gulf of Mexico after the DEEPWATER HORIZON/Macondo blowout (a class for which BP entered into a Medical Settlement Agreement). The agreement contained detailed provisions (and a deadline) for opting out of the class. Green filed a timely but noncompliant opt-out form (it was signed by his mother who held Green’s power of attorney rather than being signed by Green himself as required by the Settlement Agreement). Judge Barbier dismissed Green’s opt-out suit against BP, and the Fifth Circuit agreed that Green’s opt-out form was insufficient because it failed the “wet-ink” requirement of the Agreement (he did not satisfy the exceptions of being a minor, lacking capacity, or having died). Green then argued that the interests of justice required reversal, asserting that he lacked notice of the ground on which the court dismissed his claim. He argued that he would have produced evidence that explained his reasons for using the power of attorney to sign the form. As it would still remain undisputed that Green violated the wet-ink requirement, his excuse was insufficient, and the Fifth Circuit affirmed the dismissal of his suit.

Injured passenger’s complaint failed to sufficiently assert that the cruise line’s alleged negligence caused her injury sustained during disembarkation; Taylor v. Royal Caribbean Cruises, Ltd., No. 20-14754 (11th Cir.  Aug. 10, 2021) (per curiam).

Opinion

Pamela Taylor tripped and fell while disembarking Royal Caribbean’s ALLURE OF THE SEAS. She alleged that the cruise line failed to make the disembarkation process safe enough to handle the large quantity of passengers aboard the vessel. The cruise line filed a motion to dismiss Taylor’s claims for negligent failure to warn, negligent maintenance of the gangway flooring, and negligent failure to follow disembarkation policies and procedures. The cruise line asserted that Taylor’s complaint failed to establish that the alleged negligent acts either actually or proximately caused her injury and that she merely claimed that the purportedly dangerous conditions “can cause” injuries, but did not affirmatively state that the dangerous conditions did cause the injuries. Without alleging what specifically caused Taylor’s fall, the complaint did not give the cruise line notice as to what warnings would have been adequate to prevent injury, or what maintenance would remove the unevenness in the gangway. Judge Scola granted the cruise line’s motion to dismiss on all three counts, and Taylor appealed to the Eleventh Circuit. The appellate court agreed that Taylor failed to plausibly plead causation as to the negligent maintenance claim as she failed to identify which failure (damaged treading, a gap in the gangway flooring, or a loose screw in the flooring) caused the alleged unevenness in the flooring. The appellate also agreed that Taylor failed to plausibly allege causation as to her claim of negligent failure to follow policies as she failed to allege facts concerning which policy that was allegedly not followed was the cause of her injuries. With respect to the claim of negligent failure to warn, Taylor did not provide factual detail as to how the gangway flooring was uneven and how that unevenness caused her to trip and fall. Consequently, the Eleventh Circuit affirmed the dismissal of her complaint.

Admiralty interlocutory appeal was not available in suit brought by seaman that did not invoke Rule 9(h); indemnity is not separated on an accident-by-accident basis; employer who paid maintenance and cure after a seaman’s second accident presented fact question for indemnity from the party responsible for a prior accident in which the seaman sustained injuries to the same areas of her body; Poincon v. Offshore Marine Contractors, Inc., No. 20-30765 (5th Cir. Aug. 13, 2021) (Elrod).

Opinion

Sonia Poincon sustained an injury to her neck and back in May 2015 while employed by Offshore Marine on the M/V LOUIS J. EYMARD, a vessel owned by United Community Bank, when that vessel was involved in a collision with a vessel operated by REC Marine. Poincon sustained a second injury to her neck and back in February 2018 while employed by Offshore Marine on the M/V TOBY DODD. Poincon brought this suit against Offshore Marine, United Community Bank, and REC Marine under the Jones Act and general maritime law seeking to recover for both injuries, and the court severed the claims into two suits. Offshore Marine, the sole defendant in the suit for the second accident, brought a third-party action against REC Marine, asserting that it was entitled to indemnity and contribution for the maintenance and cure it paid to Poincon for the second accident to the extent that the payments resulted from the 2015 accident that was the fault of REC Marine. REC Marine filed a motion for summary judgment with respect to the claim for indemnity and contribution, and Judge Ashe agreed and dismissed the third-party action. Judge Ashe noted that a third party whose fault has contributed to the need for maintenance and cure payments is responsible for reimbursement of the payments made by a non-negligent or passively negligent employer. However, that principle has been enunciated in cases where the contributing fault was for the same accident for which maintenance and cure was being paid, not when there have been two independent accidents. Holding that responsibility for maintenance and cure should be determined “on an accident-by-accident basis,” Judge Ashe held that “a first accident’s maintenance and cure obligation ends where a second accident’s begins.” Consequently, he held that REC Marine had no obligation to contribute to the maintenance and cure paid by Offshore Marine for Poincon’s second accident. (See November 2020 Update). Offshore Marine filed an interlocutory appeal under Section 1292(a)(3), and the Fifth Circuit asked for briefing whether that section applied. Offshore Marine then requested the district court certify the case for an interlocutory appeal under Rule 54(b), and Judge Ashe complied. Noting that Poincon’s suit was based on the Jones Act, that the maritime claims were in personam claims, that there was no intent to elect admiralty jurisdiction, and that Offshore Marine’s claim against REC Marine could be brought on the civil side of the docket, Judge Elrod held that the suit was not an admiralty action for which an appeal was available under Section 1292(a)(3). The Rule 54(b) certification permitted the Fifth Circuit to hear the appeal. Turning to the merits, Judge Elrod held that Judge Ashe erred by adopting the new accident-by-accident rule instead of ordinary principles of causation. Judge Elrod reasoned that when a third party injures a seaman in an initial accident and there is a subsequent accident that aggravates the seaman’s injury, requiring payment of maintenance and cure, there is a fact question whether the initial accident caused the need for the subsequent maintenance and cure. Offshore Marine presented evidence that the 2015 accident was the reason for the subsequent injury. As there was a fact question as to which accident resulted in the need for maintenance and cure, REC was not entitled to judgment as a matter of law that the second accident was a superseding cause that prevented Offshore Marine from seeking indemnity/contribution.

Injured worker’s stipulations were sufficient to lift the limitation stay despite contribution and indemnity claims; Freedom Unlimited v. Taylor Lane Yacht & Ship, LLC, No. 20-11102 (11th Cir. Aug. 17, 2021) (Grant).

Opinion

Freedom Unlimited, owner of the yacht M/Y FREEDOM, engaged Taylor Lane to perform maintenance and repair work on the yacht. During the work, Joshua Bonn, a deckhand on the vessel, was injured and brought an action in state court against Freedom Unlimited and Taylor Lane. Freedom Unlimited brought this limitation action in the Southern District of Florida, and Bonn and Taylor Lane filed claims in the limitation action. Taylor Lane sought contractual indemnity and contribution. Bonn moved to lift the stay in the limitation action, stipulating that he would not seek to enforce any judgment against Freedom Unlimited or anyone else that would be entitled to seek indemnity or contribution from Freedom Unlimited that would expose Freedom Unlimited to liability in excess of the limitation fund until the federal court adjudicated the right to limitation of liability. Judge Altman agreed to lift the stay, and the Eleventh Circuit affirmed the decision. Judge Grant first noted that, pursuant to the personal contract doctrine, the contractual indemnity claim was not subject to limitation. The fact that Freedom Unlimited contested whether there was a contract in this case did not alter the result. If there were no contract, then there would be no indemnity claim to limit, and if there were a contract claim it would fall outside the limitation action. With respect to the contribution claim, the Eleventh Circuit followed its rule from the Beiswenger Enterprises case that does not require all claimants to participate in the stipulations [contrary to the rule in the Fifth Circuit]. As the court had previously held that a stipulation like that submitted by Bonn effectively turned the case into a single claimant situation, Judge Grant held that Freedom Unlimited’s rights under the Limitation Act were not jeopardized by the lifting of the stay.

Passengers’ COVID-19 class action from transatlantic cruise was dismissed based on Italian forum-selection clause; Turner v. Costa Crociere S.P.A., No. 20-13666 (11th Cir. Aug. 19, 2021) (Marcus).

Opinion

Paul Turner, a Wisconsin resident, purchased a ticket for a transatlantic cruise on the COSTA LUMINOSA, departing from Fort Lauderdale, Florida on March 5, 2020. The ticket contained a mandatory forum-selection clause for the courts of Genoa, Italy. During the prior voyage of the vessel, a passenger presented with symptoms of COVID-19 and the ship docked in the Cayman Islands to evacuate him (he later died). The cruise line advised the passengers on Turner’s cruise that the ship was safe and it was taking the most adequate measures to ensure the safety of the passengers and crew. Shortly after departing, the ship docked in Puerto Rico to evacuate a couple (who later tested positive for the virus), and the ship departed for the journey across the Atlantic without informing passengers. Other passengers became ill with symptoms of COVID-19 during the cruise, and eventually all passengers were ordered to quarantine. When the passengers disembarked in France, 36 of the 75 passengers tested positive for COVID-19, including Turner. Turner brought this suit in the federal court in the Southern District of Florida as a class action on behalf of the passengers on his cruise. The cruise line filed a motion to dismiss for forum non conveniens based on the Italian forum-selection clause, and Chief Judge Moore dismissed the case, concluding that the clause was not fundamentally unfair, that it did not violate public policy, that Italy provided an adequate alternative forum, and that the public interest factors weighed in favor of dismissal. The Eleventh Circuit agreed, noting that Turner could not satisfy the burden of showing that litigating in Italy was so gravely difficult and inconvenient that he would practically be denied his day in court. Although Turner complained to the Eleventh Circuit about the problems with travel to Italy and risks of COVID-19, Judge Marcus cited the evidence from an Italian attorney that Turner did not have to attend routine proceedings in person and could attend matters that required attendance by appointment of a special attorney on his behalf or he could request that the event take place in the United States via international rogatory. Although Turner argued that the provision in the ticket was a limitation on liability, Judge Marcus answered that the Supreme Court had rejected a similar contention in the Shute case. Finally, Judge Marcus rejected Turner’s argument that Chief Judge Moore did not properly evaluate the public interest factors, including giving weight to Turner’s chosen forum. Judge Marcus noted that the consideration given to the factors is different in the context of a forum-selection clause, and, giving substantial deference to Chief Judge Moore’s balancing, the dismissal was affirmed.

Federal court had jurisdiction pursuant to the OCSLA over suit by boat operator against BP alleging breach of a contract for the boat operator to assist in the cleanup of the DEEPWATER HORIZON/Macondo spill; Doucet v. Danos & Curole Staffing, L.L.C., No. 21-30034 (5th Cir. Aug. 19, 2021) (per curiam).

Opinion

Hillard Doucet brought this action in state court against BP and others for breach of contract in connection with his participation in the Vessels of Opportunity program by which BP contracted with boat operators to assist in the cleanup of the DEEPWATER HORIZON/Macondo oil spill. The defendants removed the case to federal court, and the case was stayed. The district court later dismissed the claim for failing to comply with a pretrial order, and Doucet did not appeal the dismissal. Nearly three years after the dismissal became final, Doucet filed a motion for relief from the order of dismissal pursuant to Rule 60, arguing that the district court lacked subject matter jurisdiction. Citing the decisions holding that the court had original jurisdiction under the Outer Continental Shelf Lands Act over operations on the outer Continental Shelf, and that only a but-for connection was necessary between the cause of action and the OCS operation, the Fifth Circuit rejected Doucet’s argument that the court lacked subject matter jurisdiction and affirmed the denial of his motion under Rule 60.

Exclusion in boatowner’s policy for claims of members of the insured’s household barred claim of insured’s wife; Godfrey v. State Farm Fire & Casualty Co., No. 19-3731, 2021 U.S. App. LEXIS 25283 (8th Cir. Aug. 24, 2021) (Kobes).

Opinion

Courtney Godfrey was injured when she was thrown from her husband’s boat. She made a claim against the insurers of her husband’s boatowner’s liability policy and umbrella policy, who denied coverage based on the household exclusion for injuries to members of the insured’s household. Applying Minnesota law, the Eighth Circuit noted that household exclusions in automobile liability policies are invalid; however, there is no such prohibition for vessel or umbrella insurance. Finding no statute or case extending the ban on household exclusions beyond automobile liability insurance, the Eighth Circuit affirmed the district court’s grant of summary judgment to the insurers.

From the federal district courts:

Judge found customary provisions in the industry for an oral charter of a towboat and reduced the amount owed for charter hire in accordance with the customary provisions; Drinnon Marine, LLC v. Four Rivers Towing of Alabama, LLC, No. 19-12485, 2021 U.S. Dist. LEXIS 134697 (E.D. La. July 19, 2021) (Ashe).

Opinion

Charles Richard Kinzeler, managing member of Four Rivers Towing, called Homer Drinnon and agreed to an oral time charter of the towboat M/V HAZEL ANN at a day rate of $2,800 plus fuel and lube. Four Rivers made two payments but did not pay the remainder of the charter hire, and Drinnon Marine brought suit against Four Rivers and Kinzeler for the charter hire. After finding that Kinzeler was acting for Four Rivers and that Four Rivers was responsible for the charter hire, Judge Ashe addressed whether any reductions should be made in the amount owed based on Four Rivers’ claims that the first and last days’ hire should be prorated by the hour and for vessel standby and on account of mechanical problems and an under-crewed vessel. Judge Ashe held that it is customary in the inland marine industry to prorate the first and last days of a charter by the hour and to reduce the hire for days the vessel was inoperable because of mechanical issues and for the multiple occasions when the vessel was operating with an inadequate crew. He therefore entered judgment after reducing the daily rate based on these defenses.

Oral agreement to provide fleeting services incorporated the indemnity/hold harmless agreement from the parties’ Harbor Service Agreement; In re Borghese Lane, LLC, No. 2:18-cv-00533, 2021 U.S. Dist. LEXIS 134623 (W.D. Pa. July 20, 2021) (Horan).

Opinion

This action arose from a breakaway of Ingram Barge Company’s barges from the Jacks Run fleet located on the Ohio River. Prior to the breakaway, Ingram had orally contracted with Industry Terminal and Salvage Company to provide fleeting services to Ingram on the same terms set forth in a written Harbor Service Agreement between the parties. The written terms provided for Industry Terminal to indemnify and hold Ingram harmless from all property damage, personal injury, or other liability incurred by or asserted against Ingram, excluding only those attributable to or arising solely out of the gross negligence or intentional acts of Ingram. Ingram sought to recover from Industry Terminal for damage to its barges, emergency response and recovery efforts, salvage and removal, and liability to third parties and moved for summary judgment on its claims. Judge Horan concluded that there was an enforceable oral maritime service contract between Ingram and Industry Terminal and that the contract allocated responsibility for the claims to Industry Terminal, regardless of fault, except for claims arising solely out of the gross negligence or intentional acts of Ingram. Consequently, Judge Horan granted summary judgment to Ingram as to Ingram’s first and third-party claims, leaving the determination of damages and expenses for resolution after discovery.

Double dismissal rule was not applied to Rule B attachments where no assets were found; entitlement to countersecurity requires giving security; reduction in security requires a showing of good cause; interlocutory sale of attached vessel was ordered; CAC Maritime, Ltd. v. Redbrick Ventures, Ltd., No. 21-202, 2021 U.S. Dist. LEXIS 134776 (D. Del. July 20, 2021) (Andrews).

Opinion

CAC Maritime, charterer of the M/V OCEAN FORCE, arrested the vessel in this action in federal court in Delaware but then converted the arrest to a Rule B attachment. The owner, Redbrick, filed a counterclaim, sought countersecurity, and moved to dismiss the attachment on the ground that CAC had previously filed attachment actions involving the same subject matter in federal court in Pennsylvania and Alabama that were dismissed, without prejudice, for lack of jurisdiction when no property was found within the districts. Redbrick invoked the double dismissal rule under Rule 41(a) (second dismissal is an adjudication on the merits) and argued that the action should be dismissed, but Judge Andrews held that the purpose of the rule would not be served as the dismissals were the result of absence of property to be attached and should not be treated as voluntary dismissals. He declined to give preclusive effect to the earlier dismissals. Although Redbrick argued that it had actually given security by bunkering the vessel and providing provisions to the crew while the vessel was arrested/attached, Judge Andrews did not consider that to be the same as giving security for the damages sought in the complaint. Therefore, Judge Andrews declined to require CAC to provide countersecurity to Redbrick on Redbrick’s counterclaim for damages incurred from CAC’s alleged breach of the charter party (unpaid hire, voyage costs, and consumed bunkers). Redbrick also sought security for its costs in maintaining the vessel for 158 days since the vessel was arrested, which amounted to $851,936. As there was an issue whether CAC could post security in that amount, Judge Andrews ordered CAC to provide the court with evidence of its financial situation. Redbrick sought a reduction in the security for release of the vessel, asserting that the damages were inflated, and that the security should not reflect the inflated amounts. As Redbrick did not carry its burden of showing good cause for the reduction, Judge Andrews ordered that the security should be 150% of the current damages claim. Finally, CAC requested that the court order an interlocutory sale as there had been an unreasonable delay in securing release of the vessel and the expenses of keeping the vessel were excessive and disproportionate to the value of the vessel. As the expenses for maintaining the vessel amounted to half the generous estimate for the sale price of the vessel in the five and a half months since the vessel was arrested, Judge Andrews ordered an interlocutory sale of the vessel with a minimum bid of 150% of the claims asserted against the vessel.

Agreement with seaman’s doctor to accept the state workers’ compensation schedule did not absolve the employer of its cure obligation when the doctor started charging based on a higher national fee schedule; paying the “standard” rate for maintenance of $30, increased to $40, was not enough for the employer to obtain summary judgment on the seaman’s claims for additional maintenance and punitive damages/attorney fees; Singerman v. PBC Management, Inc., No. 6:19-cv-00952, 2021 U.S. Dist. LEXIS 135479, 145474 (W.D. La. July 20, August 3, 2021) (Summerhays).

Opinion cure

Opinion maintenance

Thomas Singerman sustained an injury to his left arm while serving as an engineer on the M/V CAPT. W.D. NUNLEY.  After an initial surgery with Dr. Paul van Deventer, Singerman underwent several surgeries with Dr. Darrell L. Henderson. Singerman’s employer, PBC, contended that it entered into a contract with Dr. Henderson to accept payment for Singerman’s treatment in accordance with the rates in the Louisiana Workers’ Compensation Fee Schedules and that the employer made payments at those rates. However, the employer asserted that Dr. Henderson stopped charging at the state schedule and began charging at the rates in a national fee schedule. The employer moved for summary judgment that it had properly paid cure, contesting that it owed the difference of $23,127.55 between the national and state schedules. Judge Summerhays first noted that the employer had not made a Caulfield tender of a specific physician to the seaman for his surgeries that would limit the recovery for the seaman’s cure. Thus, there was a fact question whether the payments that the employer made under the state schedule were the reasonable and customary charges for the treatment. The effect of the contract with Dr. Henderson was not to limit the amount that the seaman could recover for cure; the remedy for the employer was an action against Dr. Henderson for breach of contract. As there was still an issue whether the employer had paid the proper amount for cure, Judge Summerhays declined to dismiss the seaman’s claim for compensatory and punitive damages for willful failure to pay cure. Singerman’s employer paid him maintenance until he reached maximum cure at a rate of $30 per day, increased to $40 per day, but Singerman argued that his maintenance should have been paid at a rate of $55.68 to $64.13 per day, submitting evidence of his actual living expenses. The employer moved for summary judgment that it had satisfied its maintenance obligation by paying the standard rate based on decisions from the Western District of Louisiana, where the suit was filed. As the Fifth Circuit has held that a seaman can present evidence of his expenses as basis for establishing the rate of maintenance, Judge Summerhays held that there was a fact question as to the amount of maintenance owed in this case, noting also that Singerman lives in the Eastern District of Louisiana, whose cases should be cited with respect to the amount of maintenance. The employer also moved for summary judgment on Singerman’s claim for punitive damages and attorney fees with respect to the payment of maintenance, but Judge Summerhays declined to dismiss that claim in light of the unresolved facts with respect to the determination of the amount of maintenance to be paid.

Employer was not negligent and vessel was not unseaworthy for the back injury of a deckhand when the employer conferred discretion on the deckhand to gauge whether assistance was necessary in lifting an object and the employer did not require an additional crewmember to assist; Underwood v. Parker Towing Co., No. 19-14038, 2021 U.S. Dist. LEXIS 135690 (E.D. La. July 21, 2021) (Feldman).

Opinion

Lekendrick Underwood, a deckhand on the towboat M/V MISS MORGAN, injured his back while lifting a three-inch pump that was used to drain rainwater from the hold of a barge. He had been trained in safe lifting procedures, and his employer, Parker Towing, gave deckhands discretion to decide whether to ask for assistance in lifting or performing routine tasks. Parker Towing moved for summary judgment on Underwood’s claims of negligence under the Jones Act and unseaworthiness under the general maritime law, and Judge Feldman granted the motion. Judge Feldman reasoned that where the crewmember is trained in safe lifting techniques, is performing a one-man task without assistance that is available to him, and cannot identify a negligent act on the part of his employer, there is no liability under the Jones Act. Although Underwood had to set the pump on top of a bucket in order to allow the hose to reach the water in the hold because there was a hole in the hose he regularly used, Judge Feldman did not consider that condition (or the failure to provide an additional crewmember to assist in the operation) to cause the vessel to fail to be reasonably fit or to be a cause of his injury as there were alternative methods for pumping out the water, including asking for help and swapping out the three-inch pump for a two-inch pump.

Admiralty law applied to passenger’s injury in surfing simulator on cruise ship, and admiralty law applied to the manufacturer of the simulator and the cruise line; passenger’s spouse was not entitled to bring a claim for loss of consortium; Baldoza v. Royal Caribbean Cruises, Ltd., No. 20-22761, 2021 U.S. Dist. LEXIS 136896 (S.D. Fla. July 21, 2021) (Moreno).

Opinion

Rommel Baldoza, a passenger on the SYMPHONY OF THE SEAS, was injured while participating in the onboard attraction, the FlowRider Surfing Simulator. He asserted that the FlowRider had been modified to fit the attraction onto the deck of the cruise ship, which caused it to be more dangerous. The cruise line moved to dismiss the complaint, but Judge Moreno ruled that Baldoza had sufficiently alleged failure to warn and failure to maintain, although he ordered Baldoza to replead the counts for negligent hiring, training, supervision, and retention. Judge Moreno noted that the courts had denied strict liability claims of passengers against cruise lines, but Baldoza argued that his claim was for the negligent modification of the FlowRider and Judge Moreno advised that the legal issue raised by the argument should be presented by a motion for summary judgment. Finally, the cruise line argued that the claim for punitive damages should be dismissed based on the 11th Circuit’s ruling in Eslinger v. Celebrity Cruises that punitive damages are not available for maritime personal injury cases. Judge Moreno noted that some district courts had held that punitive damages could be recovered in the event of intentional conduct, and he denied the motion with leave to raise it at the summary judgment stage. (See February 2021 Update). In a Third Amended Complaint, Nelia Baldoza, wife of Rommel Baldoza, was added as a plaintiff, and FlowRider was added as a defendant. The cruise line moved to dismiss some of the claims in the Third Amended Complaint against both the cruise line and FlowRider, and Judge Moreno held that the cruise line had standing to challenge the claims against FlowRider because the cruise line would be jointly and severally liable for successful claims against FlowRider. The cruise line first moved to dismiss the Nelia Baldoza’s claims for loss of consortium based on the Eleventh Circuit’s rule in the Amtrak case. The plaintiffs argued that state law should apply to their claims, but Judge Moreno ruled that the injury occurred on navigable waters and that admiralty law applied to all claims stemming from the maritime tort. Therefore, Judge Moreno dismissed the loss of consortium claims as not being allowed under the general maritime law. The cruise line then argued that all of the claims against FlowRider should be dismissed because the plaintiffs labeled them as state-law claims. Judge Moreno rejected that argument, however, as he held that maritime law applied to the claims regardless of how the plaintiffs characterized them. Judge Moreno then addressed the amended allegations of negligent selection and hiring, negligent supervision, and negligent retention. As the plaintiffs’ allegations merely stated conclusions and did not contain factual support for the conclusions, Judge Moreno dismissed those counts.

Passenger’s suit against cruise line in her home state was transferred to the federal court in the Southern District of Florida; Williams v. Carnival Corp., No. 3:21-cv-36, 2021 U.S. Dist. LEXIS 136566 (S.D. Texas July 22, 2021) (Brown).

Opinion

Ethelen Williams, a Texas resident, brought this action against Carnival Corporation in state court in Texas, seeking to recover for injuries she sustained on the CARNIVAL VISTA. The cruise line removed the case based on diversity jurisdiction and original admiralty jurisdiction, and moved to transfer the case to the federal court for the Southern District of Texas based on the forum-selection clause in the cruise ticket contract. Williams raised a number of defenses to the transfer, including unconscionability, but Judge Brown rejected them and held that the forum-selection clause was valid and enforceable. He then considered the public interest factors and held that this case did not present unusual circumstances that would defeat the application of the clause. Judge Brown reasoned that the courts in Texas and Florida were equally busy and equally able to apply the maritime law, and he had little doubt that the judges in Florida would be able to apply Texas law if it applied to her claims.

Good Samaritan roommate of worker on offshore platform who awoke thinking he was having a medical emergency did not assume a duty to the worker by helping him; Ramirez v. Quanta Services Inc., No. H-20-1698, 2021 U.S. Dist. LEXIS 136567 (S.D. Tex. July 22, 2021) (Rosenthal).

Opinion

Daniel Ramirez, a Louisiana resident, worked for Performance Energy, which contracted with the owners and operators of a platform rig on the outer Continental Shelf, offshore Louisiana, to perform construction work on the rig. The rig owners also hired Paloma Energy to serve as their representative for the contract with Performance Energy. Paloma Energy hired Madrid Pitre as an inspector and coordinator for the contract. Ramirez and Pitre were roommates on the rig. Ramirez awoke late one night thinking he was having a medical emergency, and he awakened Pitre, who escorted Ramirez to a nearby office. Pitre asked about the symptoms and researched the symptoms. Within 20 minutes after being awakened, Pitre brought the Person-in-Charge to Ramirez, and the Person-in-Charge called a medic on an adjacent platform who recommended that Ramirez go to a hospital. The Person-in-Charge then called a helicopter, which took Ramirez to a hospital where he was treated for a stroke. Ramirez brought suit in state court in Texas against Paloma Energy and others, asserting that the defendants did not provide timely and adequate medical care and failed to timely evacuate him from the platform. The case was removed to federal court, and Paloma moved for summary judgment on the ground that it did not assume a duty to Ramirez or breach any duty to him. Citing Louisiana law, applicable through the Outer Continental Shelf Lands Act, Chief Judge Rosenthal reasoned that a defendant does not generally have a duty to assist a person who is in peril, even if the defendant’s aid could save the plaintiff. However, Ramirez argued that, buy voluntarily helping Ramirez, Pitre assumed a duty and had to act in a reasonable and prudent manner. However, Chief Judge Rosenthal pointed out that the duty only arises if the defendant caused the need for medical aid, had a special relationship with the plaintiff, or discouraged others from giving aid. As none of those facts was presented in this case, Chief Judge Rosenthal held that no duty was owed. And, even if a duty were owed, Chief Judge Rosenthal held that the record did not establish any breach as Pitre brought the Person-in-Charge to Ramirez within 20 minutes, and the Person-in-Charge took over the situation and provided for the evacuation of Ramirez.

Judge declined to decide on the pleadings whether the vessel owner’s completed Hurricane Questionnaire/Plan was incorporated into its insurance policy and whether there was a breach of its terms; Great Lakes Insurance, S.E. v. Gray Group Investments, LLC, No. 20-2795, 2021 U.S. Dist. LEXIS 137469 (E.D. La. July 23, 2021) (Vance).

Opinion

Gray Group’s vessel, HELLO DOLLY VI, was damaged during Hurricane Sally while the vessel was moored in Pensacola, Florida. Gray Group completed an application form for insurance provided by Great Lakes together with a Hurricane Questionnaire/Plan. The application and the plan provided that the vessel would be moored at the Orleans Marina from July 1 to November 1 of the policy year. The plan also provided requirements for protection of the vessel when a storm was approaching. The plan stated above the signature line that the insured agreed that the declaration and warranty in the plan were incorporated into the insurance policy in their entirety. The policy incorporated the application into the policy. Great Lakes declined to pay for the hurricane damage to the HELLO DOLLY VI and brought this declaratory judgment action in federal court in New Orleans. Gray Group moved to dismiss the complaint on the ground that the plan was not a policy warranty because it was not incorporated into the policy, and also on the ground that it did not breach the provisions in the plan. Great Lakes then filed a cross-motion for judgment. Judge Vance denied both motions. Applying New York law in accordance with the choice-of-law clause in the policy and in the absence of an entrenched admiralty rule, Judge Vance held that there was ambiguity whether the plan had been incorporated into the policy. The policy incorporated the application, and the plan was submitted at the same time as the application. However, the term “application” was not defined, and the plan did not provide that it was part of the application. Although the plan expressly provided that it was part of the policy, Judge Vance considered the insured’s argument that only the application was incorporated into the policy to be sufficiently “plausible” that she would not decide the case on the pleadings. Although it was undisputed that the insured did not comply with four requirements in the plan (the vessel was not moored at the Orleans Marina, the vessel was not fully manned, the vessel was not evacuated to a safe harbor, and its anchor was not deployed), Gray Group argued that it did not violate the plan because the yacht was in Pensacola and the plan only applied when the vessel was moored at the Orleans Marina (or in South Florida). Judge Vance considered the interpretation that the plan would vanish when the yacht was in Pensacola to be “absurd” and held that the insured was not entitled to judgment on the pleadings that it did not breach the requirements of the plan. Finally, based on these rulings, Judge Vance ordered the insured to answer discovery requests regarding the completion of the application of insurance and the insured’s compliance with the terms of the plan.

Displeasure with the medical care received is insufficient to establish liability of the cruise line; Law v. Carnival Corp., No. 20-21105, 2021 U.S. Dist. LEXIS 137433 (S.D. Fla. July 23, 2021) (Torres).

Opinion

Tamara Law, a passenger on the Carnival ECSTASY, injured her foot when she caught her shoe in a protruding strip on a flight of stairs. Staff members cleaned her wounds, and she sought medical attention when she returned home. She brought this action based on the condition of the stairs and for failing to render appropriate care. The cruise line moved for summary judgment on the medical negligence counts, citing Law’s testimony that she felt very neglected, that no one was concerned about where she fell, and that she was not pleased with the care, although the cleaning and dressing were good. Although Law disclosed her treating physicians as experts, they did not produce expert reports or opine whether the cruise line breached a standard of care or whether the medical personnel caused her injuries. In the absence of evidence of a breach of care or causation, Magistrate Judge Torres granted the motion for summary judgment on the medical counts in the complaint.

After the plaintiff vigorously fought the defendant on every point, the judge declined to reduce the attorneys’ fees sought by the defendant; Praxis Energy Agents PTE. Ltd. v. M/V PEBBLE BEACH, No. 17-559, 2021 U.S. Dist. LEXIS 138476 (D. Del. July 26, 2021) (Stark).

Opinion

Praxis arrested the M/V PEBBLE BEACH in this action filed in the federal court in Delaware, and the owner answered and counterclaimed, seeking attorneys’ fees and costs incurred in this action and in an earlier Brazilian action between the parties. Judge Stark ruled in favor of Praxis on the Brazilian claim and in favor of the defendant in this case, awarding attorneys for litigating this matter based on the terms of the contract between the parties. Judge Stark addressed the hourly rate for the defendant’s attorney and accepted his hourly rate of $270 as an experienced lawyer working in the field of maritime law since he graduated in 1984. Judge Stark also rejected the argument that the issues were not complex and straightforward so that the fees and costs were unreasonable, noting that “Praxis’ repeated refrains as to how Defendant ‘should have litigated this matter . . . are unpersuasive, as Praxis was vigorously fighting Defendant at every point . . . .”

Purchaser of international shipment that received cargo under negotiable bills of lading was not bound by the detention provision in the bills of lading; Zim American Integrated Shipping Services Co. v. Sportswear Group, LLC, No. 20-cv-4838, 2021 U.S. Dist. LEXIS 139863 (S.D.N.Y. July 27, 2021) (Liman).

Opinion

Sportswear Group purchased women’s apparel from a factory in Bangladesh, and the shipper arranged for the ocean carriage to the Port of New York. The goods were carried under negotiable bills of lading drawn to the “order” of the shipper’s bank in Bangladesh. When Sportswear paid the bank, the bills of lading were released to Sportswear, which presented them to the carrier. Sportswear hired a trucking company to pick up the apparel at the port and deliver it to Sportswear’s warehouse, but the empty containers were not returned to the carrier, in violation of the detention provisions in the bills of lading. As the bills of lading provided that the Merchant was responsible for the detention and defined the Merchant as shipper, consignee, holder, assignee, and endorser of the bills, the carrier brought this action against Sportswear seeking detention for the containers. The first question presented to the court was whether there was subject matter jurisdiction over the action. There was no dispute that the bills of lading were maritime contracts, but Sportswear argued that the obligation to return the containers arose out of non-maritime transportation services. As the right to recovery was based on the obligation in the bills of lading, however, Judge Liman held that the court had admiralty jurisdiction over the claim. Although the court had admiralty jurisdiction, Judge Liman cited New York law for the elements of a claim for breach of contract and held that the allegations in the complaint were insufficient to establish contractual privity between the carrier and Sportswear. Although the bills of lading were negotiable and Sportswear was able to obtain the apparel by surrendering the bills of lading, Judge Liman held that the complaint itself did not allege that Sportswear was the shipper, consignee, holder, assignee, or endorsee of the bills or how Sportswear became such a party. Consequently, the claims for breach of contract were dismissed. The lack of such pleading was also fatal to the claims for quantum meruit and unjust enrichment as there was no pleading of expectation of compensation other than that to which the carrier was entitled by the terms of the bills of lading and the parties thereto.

Magistrate judge declined to strike opinions of passenger’s liability and medical experts; Altidor v. Carnival Corp., No. 20-cv-21516, 2021 U.S. Dist. LEXIS 130433 (S.D. Fla. July 27, 2021) (Goodman).

Opinion

Marie Altidor brought this action to recover for injuries she sustained on the Carnival SENSATION, when the top of a barstool flew off as she sat down and she fell to the deck. The cruise line filed an untimely Daubert motion to exclude Altidor’s liability and medical experts, and Magistrate Judge Goodman agreed to consider the motion, but he noted that the cruise line had already been warned by the court about the importance of complying with deadlines and the Local Rules, reminding the defendant “that the deadlines are not suggestions.” After rejecting the argument that Paul Tucker, a professional engineer, was unqualified to opine about the repair and maintenance of the barstool and the appropriate standard of care, Magistrate Judge Goodman noted that the cruise line elected not to take Tucker’s deposition and that many of the points about speculation and assumptions raised in the Daubert motion “were a fault of Defendant’s own making.” Based on the record presented, Magistrate Judge Goodman found Tucker’s opinions and methodology to be reliable. However, Tucker also opined that the cruise line was aware that the barstool did not function properly because of the presence of lubricant when Tucker conducted an inspection of the barstool. Tucker did not state that lubricant was present at the time of the accident, and Magistrate Judge Goodman considered it implausible for Tucker to conclude that lubricant was present when the accident occurred. Based on the undeveloped record, Magistrate Judge Goodman did not exclude the testimony and denied the motion without prejudice to the right of the cruise line to raise the issue when there was a sufficient record on the issue. The cruise line also objected to Tucker’s reliance on ASTM codes with respect to the threads of the screw in the barstool and its friction/tension. The cruise line objected to the application of the codes to the cruise ship, but Magistrate Judge Goodman rejected the argument, questioning how the science of friction/tension would “work differently the moment the item is moved from land to a boat.” The cruise line objected to the testimony of Dr. Roberto Moya with respect to future medical expenses that the passenger “may” incur. Not locating any maritime common law or statute as to the admissibility of such evidence, Magistrate Judge Goodman looked to Florida law that restricts recovery of future medical expenses to those that are “reasonably certain” to be incurred. However, Florida law does not require the medical expert to use the precise words “reasonably certain,” and an expert may testify that procedures are “possible” or “likely.” Magistrate Judge Goodman reasoned that this evidence was more appropriate for the jury to consider.

Magistrate judge declined to apply the Twombly/Iqbal pleading standard to affirmative defenses and addressed the injured passenger’s objections to the defenses asserted by the cruise line and its concessionaire; Melaih v. MSC Cruises, S.A., No. 20-cv-61341, 2021 U.S. Dist. LEXIS 141234, 141234 (S.D. Fla. July 27, 2021) (Valle).

Opinion Park West

Opinion MSC

Nahlah Melaih slipped on water leaking from the ceiling at Park West’s art gallery on the MSC SEASIDE. She brought this action against the cruise line and the operator of the art gallery and moved to strike thirteen of MSC’s affirmative defenses and five of Park West’s defenses for insufficient factual support, as shotgun pleadings, or not cognizable as a matter of law. Before addressing the specific defenses, Magistrate Judge Valle noted that the Eleventh Circuit has not addressed whether the Twombly/Iqbal heightened pleading standard applies to affirmative defenses. In the absence of such a decision, she declined to apply the heightened standard to affirmative defenses. With respect to the defenses of comparative fault and failure to state a claim, Magistrate Judge Valle held that the pleadings should be treated as denials and should not be stricken. The defenses alleging intervening/superseding events and proximate cause and force majeure/Act of God were sufficiently pleaded, except that the pleading requesting a reduction of the defendant’s liability for the fault of a third party was inappropriate in light of the maritime joint-and-several liability rule. The defense of mitigation of damages was held to be proper under maritime law, and the defense that the damages were caused by pre-existing injuries was sufficient to assert a causation defense. Magistrate Judge Valle declined to dismiss the defenses asserting assumption of risk, noting that this defense is viable to reduce a passenger’s damages. Finally Magistrate Judge Valle held that the defense that the action was subject to limitations in the ticket should be stricken as limitations of liability in cruise ship tickets are not enforceable against negligence claims.

Husband of injured jet ski operator was allowed to maintain loss of consortium claim against operator of recreational vessel in collision, but the claims for loss of use and damage to the jet ski were denied; Robertson v. Hynson, No. 18-13391, 2021 U.S. Dist. LEXIS 141714 (D.N.J. July 29, 2021) (Kugler).

Opinion

The jet ski operated by Deanna M. Robertson collided with the recreational vessel operated by Scott A. Hynson in the Gravens Thorofare near Avalon, New Jersey. Deanna Robertson and her husband, Bryan Robertson, brought this suit in state court in New Jersey against Hynson, and Hynson removed the case to federal court pursuant to the court’s admiralty jurisdiction. Hynson moved for summary judgment on the claim of Bryan Robertson for loss of his wife’s consortium and on the claims for loss of use and damage to the jet ski that was involved in the collision. Judge Kugler noted the different approaches of the Supreme Court in Miles and Yamaha with respect to loss of society in maritime cases, finding that this case was more squarely within the situation in Yamaha, except for the fact that Ms. Robertson was not fatally injured. Consequently, Judge Kugler held that Bryan Robertson’s claim for loss of consortium could proceed. However, as it is well-settled that the owner of a pleasure craft is only entitled to recover damages for loss of use if the owner can prove lost profits with reasonable certainty, Judge Kugler dismissed the claim for loss of use of the jet ski. Finally, the plaintiffs’ claim for physical damage to the jet ski was dismissed because the plaintiffs did not provide any evidence in response to the motion for summary judgment to establish the cost for the physical damage.

Judge declined to bifurcate liability and damages in limitation action; In re N&W Marine Towing, LLC, No. 2:20-cv-02390, 2:21-cv-00150, 2021 U.S. Dist. LEXIS 141508 (E.D. La. July 29, 2021) (Guidry).

Opinion

Trey Wooley, a deckhand on the M/V ASSAULT, injured his hand while helping to replace severed face wires for the tow of the M/V NICHOLAS in the Mississippi River. The owner of the NICHOLAS filed a limitation action in federal court in New Orleans, and Wooley brought an action in state court in New Orleans that was removed to federal court. Wooley moved for bifurcated trials on the issues of liability and damages, with liability to be determined in a bench trial and damages to be decided later by a jury in the separate action (in order to preserve his right to a jury trial under the Saving to Suitors Clause). Citing Judge Barbier’s decision in Bertucci Contracting, Judge Guidry found bifurcation to be unwarranted, as the issues of limitation and damages turned on the same evidence and testimony such that the time and resources of the court and parties would be better served through a single trial on all issues. He therefore denied the motion to bifurcate.

Judge lifted stay in limitation action for husband and wife to pursue claim in state court related to the husband’s injury; In re Chesapeake Marine Tours, No. GLR-20-3255, 2021 U.S. Dist. LEXIS 142648 (D. Md. July 30, 2021) (Russell).

Opinion

Steven Bryson was injured while disembarking from the QUATRO, MD 8540 AR, owned and operated by Watermark Cruises, during a tour of Spa Creek in Annapolis, Maryland. Bryson and his wife filed a claim in the limitation action and then sought to lift the stay so they could pursue their claim in state court. Watermark moved to strike the claimants’ jury demand and for partial summary judgment on the claimants’ defense that the limitation action was untimely. As the claimants had stipulated that the claims of Steven Bryson would irrevocably take priority over his wife’s claims, Judge Russell treated the case as involving a single claimant and approved the lifting of the stay with the appropriate stipulations for the authority of the limitation court. As the stay was lifted for litigation in state court and as the parties agreed that the remaining limitation claim would not be decided by a jury, Judge Russell did not rule on the motion to strike the jury demand, stating that “which of Claimants’ claims are entitled to a trial by jury is a question to be resolved in the forum in which those claims are presented.” Claimants argued that the facts needed to support their timeliness defense with respect to the filing of the limitation action were within the control of Watermark and their defense should not be stricken while they developed the facts. As the stay was lifted and discovery would proceed in state court, Judge Russell declined to rule on the timeliness issue at this time.

Maritime law, not state law, applied to damage to marina caused by explosion and fire on vessel; In re Kuhl, No. 21-cv-60408, 2021 U.S. Dist. LEXIS 142288 (S.D. Fla. July 30, 2021) (Bloom).

Opinion

Reichen Kuhl, owner of the 28-foot Four Winns 280 Horizon motorboat, docked the vessel for fueling at the Bahia Mar Marina in Fort Lauderdale. After the fueling, an explosion and fire occurred on the vessel, and there was damage to another vessel and the marina’s fuel dock. Kuhl brought this limitation action, and the owner of the marina filed a claim for negligence and violation of Florida law, requesting a jury trial and seeking attorney fees. Kuhl moved to strike the count seeking to recover under Florida law that imposed a higher standard of care than permitted under the general maritime law. The claimant argued that there was no conflict with the general maritime law because the property damage suffered by the marina was not the result of a collision or allision. Judge Bloom noted that the Fifth Circuit had previously rejected a similar argument involving the same statute and that the claimant had not cited any case drawing the distinction sought by the claimant. Accordingly, Judge Bloom dismissed the count seeking to recover under Florida law.

Judge sanctioned an attorney in the DEEPWATER HORIZON/Macondo litigation for litigating in bad faith, with improper motive, and with reckless disregard of his duty to the court; In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, No. 2-10-md-2179, applies to No. 21-00237 (E.D. La. Aug. 2, 2021) (Barbier).

Opinion

Brian J. Donovan, a Florida lawyer, began his involvement in the multidistrict litigation from the DEEPWATER HORIZON/Macondo blowout with three clients who submitted claims to the Gulf Coast Claims Facility, administered by Kenneth Feinberg (the GCCF was funded by BP). The GCCF denied two of the claims and made payments on another. Donovan had the option to bring an action against BP or the Oil Spill Liability Trust Fund (established by the Oil Pollution Act of 1990), but he brought suits against the GCCF and Feinberg for “fraudulently, recklessly, negligently, and/or knowingly” failing to properly process the claims of Donovan’s clients, in violation of the Oil Pollution Act and Florida law. Donovan also filed a suit against the Plaintiffs Steering Committee and one of its co-liaison counsel, Stephen J. Herman, alleging collusion with BP and Feinberg to limit BP’s liability in exchange for additional compensation for Herman and the PSC in connection with the agreement to settle economic losses that has been the subject of so many decisions in our Updates. After Donovan’s motion to recuse Judge Barbier was denied, Judge Barbier dismissed these suits, and Donovan did not appeal. Donovan also brought a qui tam action under the False Claims Act, and RICO against the 17 members of the PSC (including Stephen Herman and James P. Roy), Feinberg, Patrick A. Juneau, administrator of the economic class action settlement, the Garretson Resolution Group, administrator of the medical benefits class action settlement, and Judge Barbier. When the United States declined to intervene, Donovan dismissed that action without prejudice. Donovan then brought another action, this time naming Herman, Roy, Feinberg, Juneau, and Judge Barbier. This action again asserted that the defendants engaged in a fraudulent scheme to maximize compensation for the plaintiffs’ attorneys in exchange for limiting the liability of BP. Donovan also dismissed that action without prejudice. Herman, Roy, and Juneau then filed motions for sanctions against Donovan, asking for fees and costs in defending the lawsuits. Judge Barbier first noted that the dismissal of the suits did not deprive the court of its inherent power to issue sanctions for abuse of judicial process. Noting that the court had power under the All Writs Act as well as inherent authority to issue an order enjoining a repeatedly vexatious litigant from filing future actions without first obtaining permission from the court, Judge Barbier found it “telling that Donovan never sued BP.” Given that the GCCF offered one of Donovan’s clients $173,000, Judge Barbier did not consider it “unreasonable to speculate that [the client] even had a good chance of recovering some amount from BP.” However, Judge Barbier reasoned that “by not suing BP, Donovan threw his clients’ best hope of recovery out the proverbial window.” And, Judge Barbier pointed out that the DEEPWATER HORIZON/Macondo litigation was not the “first frivolous RICO action” filed by Donovan or his first sanction. Concluding that an injunction was proper under both the All Writs Act and the court’s inherent authority for “willfully” abusing the judicial process, Judge Barbier enjoined Donovan from filing any suit in state or federal court against Herman, Roy, Juneau, or any other person related to the DEEPWATER HORIZON/Macondo Well casualty and oil spill, or any of the claims process arising from that incident, without first receiving express approval from the court. Judge Barbier also ordered Donovan to pay the attorney fees of Herman, Roy, and Juneau for defending the suits. Finally Judge Barbier ordered Donovan to provide a copy of the decision to the clients he represented in the Feinberg action and to conspicuously post the decision to the websites and blogs that he owns, operates, or maintains.

Evidence was insufficient to establish breach of contract or breach of the warranty of workmanlike performance for loss of stabilizers on vessel; Miro Holdings, LLC v. Gyro-Gale Corp., No. 20-14223, 2021 U.S. Dist. LEXIS 144284 (S.D. Fla. Aug. 2, 2021) (Middlebrooks).

Opinion

Miro Holdings, owner of the RAMBLIN’ ROSE, contracted with Gyro-Gale for the installation of stabilizers on the yacht. The contract included a provision that Gyro-Gale would refund the full payment if Miro Holdings was not satisfied with the equipment. A few months after the installation, the captain heard a loud bang and the vessel lurched and pulled to one side. During an inspection after the vessel arrived back in port, it was discovered that three stabilizer fins were missing from the hull and the one that remained attached had significant damage. There was discussion about replacement of the stabilizers, and Gyro-Gale’s vice president testified that Gyro-Gale would replace the stabilizers at 50% of the replacement cost on the condition that the parties continue to investigate and determine the source of the loss/damage. The vessel owner brought this action for breach of contract and breach of the warranty of workmanlike performance, and Gyro-Gale counterclaimed for breach of contract and unjust enrichment. After a bench trial, Judge Middlebrooks held that the owner failed to meet its evidentiary burden of showing that the design/installation was defective. As the evidence was insufficient to attribute the loss to Gyro-Gale, Judge Middlebrooks also denied the owner’s warranty claim. Insufficient evidence also resulted in Judge Middlebrooks holding that Gyro-Gale could not succeed on its counterclaim for breach of contract, concluding that the alleged verbal agreement was too indefinite to be enforceable. Judge Middlebrooks also denied the unjust enrichment claim as the second set of stabilizers began to exhibit signs of defectiveness shortly after their installation, so the evidence did not establish that a benefit was conferred on the owner. Finally, Judge Middlebrooks held that the defendant was not entitled to attorney fees under Florida law as the prevailing party as the owner’s claim was not factually or legally unsupported as required by the statute, although Judge Middlebrooks was inclined to consider Gyro-Gale a prevailing party for an award of costs.

Evidence that asbestos dust could be released from the defendant’s product was insufficient to establish the amount or duration of exposure necessary to establish that the defendant’s product was a substantial factor in causing the seaman’s mesothelioma; Wineland v. Air & Liquid Systems Corp., No. C19-0793, 2021 U.S. Dist. LEXIS 144249, 147257, 147258, 154111 (W.D. Wash. Aug. 2, 5, 16, 2021) (Lasnik).

Order William Powell

Order Cleaver-Brooks

Order Warren Pumps

Opinion IMO Industries

John Dale Wineland died from mesothelioma that he claimed was caused by exposure to asbestos contained in Alfa Laval products while he served in the engine rooms of United States Navy vessels. Although there was evidence that Wineland was exposed to significant levels of asbestos dust while working in the engine room of at least one vessel, the evidence was insufficient to establish that the products of the William Powell, Cleaver-Brooks, Warren Pumps, or IMO Industries (successor to DeLaval Steam Turbine) was a substantial factor (the maritime standard for causation) in causing Wineland’s disease or that asbestos-containing replacements were necessary (in the case of Cleaver-Brooks) for its products to function as designed. Therefore, Judge Lasnik dismissed these defendants from the suit.

Judge ordered expedited trial on the maintenance and cure claim; In re Madere & Sons Marine Rental, Nos. 19-10610, 19-11768, 2021 U.S. Dist. LEXIS 145679 (E.D. La. Aug. 4, 2021) (Lemmon).

Opinion

Milton Picou, a seaman on the M/V LYLA ANGELLE, was injured in a collision between that vessel and the M/V MISS ALENE. Picou asserted claims in the limitation actions filed by both vessel owners and sought an expedited trial of his claim for maintenance and cure. The issue with cure was based on the employer’s denial of a lumbar fusion, recommended by Dr. Andrew Todd, based on the report of Dr. Gabriel Tender, who examined Picou and disagreed with the recommendation for surgery. The dispute over maintenance was based on the employer’s payment of $9 per day because Picou was living with his parents. Picou contended that, despite his testimony that he had few living expenses, his maintenance should be increased to the amount awarded in other cases and because he owed child support. As the liability trial was six months away, and as the court had the capacity to conduct a non-jury video trial before then, Judge Lemmon agreed to sever the maintenance and cure issues for an expedited trial.

DEEPWATER HORIZON/Macondo opt out failed to establish economic losses or that it was owed commissions by BP; Global Disaster Recovery & Rebuilding Services, LLC v. BP Exploration & Production, No. 16-06585, 2021 U.S. Dist. LEXIS 146767 (E.D. La. Aug. 5, 2021) (Barbier).

Opinion

Global Disaster is a disaster recovery services provider owned and operated by Billy Burkette. Before the DEEPWATER HORIZON/Macondo blowout, Global Disaster had a contract with Airware by which Global Disaster would crush concrete for Airware. Global Disaster alleged that Airware could not pay for Global Disaster’s services after the oil spill, and Airware agreed to transfer ownership of the concrete to Global Disaster. Global Disaster also asserted that it lost a contract to sell crushed concrete to Robins Seafood because the Coast Guard, under BP’s control, took over the Port of St. Bernard where the concrete was stored. Global Disaster claimed that it was entitled to recover from BP $14 million that it would have earned from Airware as an economic loss related to the blowout. Global Disaster also alleged that it secured the exclusive right to distribute Aqua N-Cap (a polymer sediment filtration technology to remediate oil spills) with an oral understanding with the manufacturer, Remediation Technologies. Global Disaster claimed that the manufacturer agreed to pay a commission to Global Disaster on sales of the product to BP. Global Disaster also asserted that BP personnel agreed to procure other goods and services through Global Disaster for a 20% commission. When BP did not purchase the goods and services, Global Disaster sought commissions from BP. Global Disaster opted out of the Economic and Property Damages Settlement and brought this suit against BP. BP moved for summary judgment on all of the claims, and Judge Barbier granted summary judgment on the Airway claim because there was no admissible evidence that Airway could not fulfill its obligation as a result of the oil spill (Burkette was told, but could not confirm or deny, that BP impacted Airware’s business so that it could not cover its costs). Second, Global Disaster admitted that Airware resolved its breach by deeding the concrete to Global Disaster. Finally, Global Disaster entered into a contract with another company to crush the concrete with Airware that was worth more than the amount of its contract with Airware. The claim involving the sale of crushed concrete to Robins Seafood failed because there was insufficient evidence of the contract under Louisiana law (there was no corroboration of the contract other than the testimony of Burkette). Additionally, the alleged contract was conditioned on the approval of the State of Louisiana, and there was no evidence of that approval. The claims for commissions also failed for multiple reasons. BP did not want to use the Aqua N-Cap product and did not agree to purchase any amount of it, and there was no evidence that BP actually agreed to pay a commission on other products.

Judge struck late-filed claim in limitation action but then granted the claimant leave to file the claim; In re Funk, No. 21-cv-1046, 2021 U.S. Dist. LEXIS 148026 (S.D. Cal. Aug. 5, 2021) (Anello).

Opinion

After a fire on the SEA TIGER at the harbor in Oceanside, California, the vessel’s owners, Harry Funk and Laura Glaves-Funk, filed this complaint seeking limitation of liability. The court ordered claims to be filed by July 14, 2021, and Geico filed a claim on July 22, 2021. A week later, on July 29, 2021, Geico filed a motion seeking leave to file its claim out of time. As the claim on July 22 was after the deadline, Judge Anello sua sponte struck the claim. Judge Anello then reasoned that the action was still in its early stages (discovery had not yet begun) and delay from the late filing would be minimal. Consequently, he granted leave to Geico to file its late claim.

Passenger’s next friend did not show good cause to amend her complaint to add a claim for punitive damages; Benton v. Carnival Corp., No. 20-cv-23644, 2021 U.S. Dist. LEXIS 146717 (S.D. Fla. Aug. 5, 2021) (Bloom).

Opinion

Lisa Benton suffered a stroke during a cruise on the Carnival FASCINATION. Her next friend brought this action alleging improper medical care when the nurse refused to call the ship’s doctor to treat Ms. Benton until she paid for an emergency examination and for the doctor’s failure to arrange an immediate evacuation of Benton after learning of her condition. Six months after the deadline for amendment to pleadings in the Scheduling Order, Benton’s next friend moved to file an amended complaint to assert a claim for punitive damages. The next friend claimed that there was good cause for the late filing because discovery had produced evidence to support the claim and because the ability to assert a claim for punitive damages was “recently solidified” in the decision from the Southern District of Florida in Hall v. Carnival Corp. (See June 2021 Update). Judge Bloom did not accept these explanations as the plaintiff had been in possession of the facts and the allegations necessary to assert the claim for punitive damages since before the deadline and because the right to pursue punitive damages (for intentional misconduct) had been established and was not a recent development in the law. Therefore, Judge Bloom declined to allow an amendment to the pleadings after the deadline passed.

Summary judgment was denied for passenger’s slip and fall on wet deck ten to twelve feet from the area where the crew were mopping the deck and where the wet floor signs were located; Lewis v. Carnival Corp., No. 20-cv-24364, 2021 U.S. Dist. LEXIS 146863 (S.D. Fla. Aug. 5, 2021) (Rosenberg).

Opinion

Latoya Lewis, a passenger on the Carnival SENSATION, slipped and fell on the main marble walkway on Deck 9 after being directed around an area where the crew were mopping the deck. The area where Lewis fell was ten to twelve feet from where the crew members were mopping and where the wet floor signs were located. The area where she fell was not cordoned off. Lewis brought this action in federal court for the Southern District of Florida, and the cruise line moved for summary judgment on the grounds that the condition was open and obvious and that the cruise line had adequately warned of the condition of the wet deck. Whether the signs were close enough to the area where the passenger fell to warn Lewis and whether the condition of the deck in that area was open and obvious were issues that Judge Rosenberg considered to be within the province of the fact finder. However, Judge Rosenberg did grant summary judgment to the cruise line on the claim that the cruise line failed to have adequate nonslip flooring in an area where liquids are commonly on the floor, as there was no evidence that the cruise line created or approved of the design and on the claim for negligent supervision and training as Lewis did not present evidence to support them.

Judge in limitation action filed by the owner of the vessel declined to stay state actions against the operator of the vessel; In re Sarasota Youth Sailing Program, Inc., No. 8:21-cv-150, 2021 U.S. Dist. LEXIS 146678 (M.D. Fla. Aug. 5, 2021) (Tuite).

Opinion

Riley Baugh was operating the CARIBE 1, owned by Sarasota Youth Sailing, when he allegedly lost control of the vessel, resulting in the death of Ethan Max Isaacs and an injury to Lauren-Taylor Nock. Sarasota Youth Sailing filed this limitation action in federal court in Tampa, Florida, and suits were filed in state court on behalf of Isaacs and Nock. Baugh then moved the federal court in the limitation action to extend the limitation injunction to include the suits against Baugh filed in state court. He based his argument on the Ninth Circuit’s decision in the Paradise Holdings case in which the court stayed proceedings against the vessel’s captain in order to further the purpose of the Limitation Act to permit the shipowner to retain the benefit of its insurance, deciding the claims implicating the insurance in one proceeding. Magistrate Judge Tuite rejected that argument, however, noting cases that have declined to apply the analysis in Paradise Holdings and also noting that although Baugh was insured on the same policy as vessel owner Sarasota Youth Sailing, he was also an insured on two separate policies that provided him with significant coverage. Magistrate Tuite declined to extend the injunction (issued for claims against Sarasota Youth Sailing) to claims against Baugh.

“Remand” of cases filed in federal court to state court: Judge remanded to state court a limitation action filed in federal court; judge corrected order that admiralty case filed in federal court could be remanded to state court where there was no admiralty jurisdiction; Margaritis v. Mayo, No. 20-cv-3995 c/w Nos. 20-cv-5493, 20-cv-5589, 2021 U.S. Dist. LEXIS 148289 (E.D.N.Y. Aug. 6, 2021) (Brown); Danni v. Catalina Channel Express, Inc, No. 21-cv-5964, 2021 U.S. Dist. LEXIS 149447 (C.D. Cal. Aug. 5, 2021) (Gee).

Opinion Margaritis

Opinion Danni

Lisa Margaritis drowned during the transit from a Stand Up Paddle Yoga class offered by the defendants in Southold, New York. Margaritis’ husband brought an action in the Suffolk County Supreme Court against The Giving Room LLC, Goldsmith’s Boat Shop Inc., and Peconic Water Sports LLC, which was removed to federal court by Peconic Water Sports LLC based on the original admiralty jurisdiction of the federal courts. The plaintiff filed a second action against Peconic Jet Ski LLC, which was also removed to federal court based on admiralty jurisdiction. Peconic Jet Ski LLC then filed a limitation action in federal court, which was consolidated with the two removed suits. The plaintiff moved to remand the removed cases to state court, arguing that admiralty jurisdiction did not provide a proper basis for removal, and Judge Brown agreed that the cases should be remanded for that reason. Interestingly, Judge Brown then gave as an additional reason for remanding the cases that the defendants had not obtained the approval of defendant The Giving Room to the removal (even though The Giving Room was not a defendant in the second removed case). More interestingly, Judge Brown held that all three cases, including the limitation action that was filed in federal court and that was not removed from federal court, would be “remanded as a consolidated action.” Judge Brown held that the state court was competent to entertain a claim for limitation of liability and to afford the shipowner relief under the Limitation Act, and he would not split the three cases out of concern for judicial economy and the right of the plaintiff to a common-law remedy. Consequently, the action filed in federal court was “remanded” to state court. [Compare Vatican Shrimp Co. v. Solis, 820 F.2d 674, 677 (5th Cir. 1987): “However, once the shipowner’s right to limit liability is contested, only a federal court may exercise jurisdiction of the matter because the cause becomes cognizable only in admiralty.”]

Pamela Danni filed a complaint in federal court in California in admiralty for injuries she sustained on a ramp while attempting to board the defendants’ ferry at the Port of Long Beach. The court issued an order to show cause why the case should not be “remanded” to state court for lack of admiralty jurisdiction, and Danni filed a response conceding that her injury occurred on land and not on navigable water. Judge Gee recognized that she “erred in characterizing” the jurisdiction issue as involving a remand of a case to state court when it had been filed in federal court. In the absence of admiralty jurisdiction, Judge Gee ordered the case dismissed without prejudice for lack of subject matter jurisdiction.

Judge applied law of the United States Virgin Islands to determine if attorney fees were recoverable in a marine insurance dispute and held they were not, absent bad faith; Sunfari Experiences, LLC v. Certain Underwriters at Lloyd’s London, No. 19-cv-61516, 2021 U.S. Dist. LEXIS 149330 (S.D. Fla. Aug. 6, 2021) (Martinez).

Opinion

This decision arises from a suit by Sunfari Experiences against its insurer, Certain Underwriters at Lloyd’s London. Sunfari’s vessel was damaged during Hurricane Irma, and Sunfari sought benefits from its insurer together with attorney fees. Sunfari sought attorney fees on three theories, bad faith under the general maritime law and pursuant to statutes of Florida or the United States Virgin Islands. As there is no entrenched rule on attorney fees under the general maritime law, our old friend Wilburn Boat provides for the application of state law. Following the Eleventh Circuit choice-of-law rule from the Restatement, Judge Martinez held that the most significant relationship for the policy was the Virgin Islands where the policy was delivered and accepted by Sunfari and where the locus of the subject matter was located. Although the Virgin Islands has a statute providing for the award of attorney fees to the prevailing party, the federal court for the Virgin Islands has applied the American Rule in marine insurance claims. In the absence of a decision from the Supreme Court of the Virgin Islands, Judge Martinez held that the statute did not apply. Consequently, Judge Martinez analyzed whether there was bad faith and, finding none, held that Sunfari was not entitled to attorney fees.

Vessel surveyor was not entitled to recovery attorney fees for nonpayment of fees; Mark Shiffer Surveyors, Inc. v. SJ-194, No. 21-99, 2021 U.S. Dist. LEXIS 148559 (E.D. La. Aug. 9, 2021) (Vance).

Opinion

Mark Shiffer Surveyors surveyed the barges SJ-194, SJ-211, and SJ-216 and brought this action against the vessels, in rem, to recover the charges for the surveying together with attorney fees under Louisiana law. The vessel owner moved for judgment on the pleadings with respect to the claim for attorney fees on the ground that maritime law governed the contract between the parties and maritime law does not provide for the award of attorney fees. Judge Vance agreed and entered partial judgment dismissing the claim for attorney fees under Louisiana or any other law.

Passengers sufficiently alleged actual or constructive knowledge of the cruise line for the threat of COVID-19, but the cruise line did not owe a heightened duty of care; passengers who tested positive for COVID-19 alleged an injury; for passengers who did not test positive, the entire vessel was not a zone of danger and they would have to plead an imminent risk of harm; passengers were required to allege that they contracted COVID-19 as a result of the cruise line’s negligence; the judge declined to rule at this stage on effect of the class-action waiver and granted the passengers leave to plead their standing to seek injunctive relief; Chung v. Carnival Corp., No. 20-cv-4954, 2021 U.S. Dist. LEXIS 149147 (C.D. Cal. Aug. 9, 2021); Ford v. Carnival Corp., No. 20-cv-6226, 2021 U.S. Dist. LEXIS 149151 (C.D. Cal. Aug. 9, 2021) (Pregerson).

Opinion Chung

Opinion Ford

These suits were brought by passengers on the GRAND PRINCESS during its roundtrip voyage from San Francisco to Mexico in February 2020. The passengers brought putative class actions against the cruise line in federal court in California seeking damages for the cruise line’s negligent response to COVID-19 and injunctive relief (alleging that the cruise line was aware that at least one passenger on the voyage was suffering from COVID-19 symptoms but did not take precautions to stop the spread or warn the passengers). The cruise line moved to dismiss the complaints, and Judge Pregerson addressed the duty owed by the cruise line. The plaintiffs asserted that the cruise line owed a heightened duty of care because cruise ships create a particular risk of a viral outbreak. Judge Pregerson rejected that argument, noting that there is an increased risk of transmission in many settings, including nursing homes, classrooms, and public transportation. As the allegations were insufficient to plausibly establish a unique risk-creating condition, Judge Pregerson reviewed the allegations of actual or constructive knowledge of the risk-creating condition and concluded that the passengers’ allegations were sufficient to plausibly demonstrate that the cruise line knew or should have known that COVID-19 posed a threat to its passengers before setting sail and at the time that a passenger reported symptoms associated with COVID-19. Judge Pregerson then addressed whether the passengers were able to establish an injury, and he held that passengers who tested positive or who exhibited symptoms of COVID-19 sufficiently alleged an injury for which they could recover; however, other passengers would have to meet the zone of danger test and establish that they were placed at risk of immediate physical injury. Judge Pregerson held that the allegation that at least 100 passengers who traveled on the vessel have tested positive for COVID-19 and that the entire vessel was a zone of danger was insufficient, and those passengers would have to establish the risk of immediate physical injury. Those passengers who only alleged fear of contracting the virus and emotional distress could not pursue a claim of negligent infliction of emotional distress because exposure does not result in immediate risk of physical harm. Judge Pregerson addressed the sufficiency of the allegations of causation and held that, as the passengers did not allege when they began to experience symptoms, it was impossible to determine whether the cruise line’s alleged negligence caused the symptoms. Therefore, he dismissed the negligence claims with leave to amend. The cruise line challenged the putative class action based on the waiver of class actions in the passage contracts, but Judge Pregerson held that it was premature on the factual record to address the issue and advised that the issue should be raised in a motion for summary judgment. Finally, Judge Pregerson addressed the cruise line’s argument that the passengers lacked standing to seek injunctive relief because they did not allege that they would travel again on the defendant’s cruise ships. Judge Pregerson agreed and granted the passengers leave to sufficiently allege standing.

Garnishee had standing to raise foreign sovereign immunity for the debtor; debtor waived sovereign immunity by arbitration agreement; debtor’s property was not immune from garnishment; Preble-Rish Haiti, S.A. v. Republic of Haiti, No. 4:21-cv-1953, 2021 U.S. Dist. LEXIS 149693 (S.D. Tex. Aug. 10, 2021) (Ellison).

Opinion

Preble-Rish Haiti claimed that it was owed more than $27 million for fuel delivered to Haiti by vessel and consequential damages and commenced an arbitration in New York pursuant to the arbitration clause in the contracts between the parties. However, Preble-Rish sought security for the arbitration and sought to garnish/attach funds in the possession of BB Energy, located in Houston, that were designated for payment to Haiti. BB Energy sought to invoke sovereign immunity on behalf of debtor Haiti, and Judge Ellison held that BB Energy had standing to assert Haiti’s assertion that it was immune from prejudgment attachment/garnishment. The parties argued about whether there was admiralty jurisdiction, but Judge Ellison reasoned that the jurisdiction inquiry began and ended with the Foreign Sovereign Immunity Act because it is the sole basis for jurisdiction over foreign sovereigns, such as Haiti. Turning to the immunity issues, Judge Ellison first held that the arbitration provisions in the contracts between the parties demonstrated the intent to waive foreign sovereign immunity from suit. Judge Ellison then discussed the exception to the general rule in the FSIA that sovereigns are immune from prejudgment attachment and held that the exception was established because the property was used for a commercial activity in the United States, Haiti had agreed to provide security in the contracts, and the purpose of the attachment/garnishment was to secure satisfaction of a judgment and not to obtain jurisdiction. Therefore, Judge Ellison denied the motion to dismiss the attachment, but stayed the proceedings pending developments in the arbitration proceeding (whether the contracts were maritime in nature).

Service of process by a process server at the defendant’s place of business in Singapore was sufficient; Ganpat v. Eastern Pacific Shipping, PTE. Ltd., No. 18-13556, 2021 U.S. Dist. LEXIS 8411 (E.D. La. Aug. 10, 2021) (Morgan).

Opinion

Kholkar Vishveshwar Ganpat claimed that he contracted malaria while serving as a crewmember of the M/V STARGATE and brought this suit against Eastern Pacific under the Jones Act and general maritime law. Ganpat served Captain Owen Bona on the M/V BANDA SEA while the ship lay at anchor in the Mississippi River just below New Orleans, asserting that Captain Bona was a managing agent of Eastern Pacific. Eastern Pacific objected to the service, arguing that Captain Bona was an employee of Ventnor Navigation, not Eastern Pacific. Ganpat responded that Eastern Pacific was the manager of the STARGATE and that Captain Bona was a borrowed servant or managing agent of Eastern Pacific. As there was no evidence that Captain Bona was employed by Eastern Pacific, the question presented was whether he could be considered a managing agent of Eastern Pacific. However, the evidence established that Captain Bona was not involved in any aspect of Eastern Pacific’s business that related to the vessel on which the cause of action arose. Judge Morgan declined to conclude that service could be made on a foreign corporation that was not transacting business in Louisiana through a non-employee captain of a vessel on which the accident did not occur who had no control over any operations of the defendant in the forum state. (See February 2020 Update). Judge Morgan gave Ganpat several extensions to properly serve Eastern Pacific. Finally, more than a year later, Ganpat filed a proof of service, an affidavit from a process server in Singapore who stated that he handed the summons and complaint to Eastern Pacific’s receptionist, who signed and affixed the company stamp to the summons. Eastern Pacific challenged the sufficiency of the service, and Judge Morgan held that the service complied with Rule 4(f)(2)(A) in that it was accomplished by a method prescribed by the laws of Singapore for service in that country in its courts of general jurisdiction.

Claimant that did not receive direct notice of the limitation action was given leave to file a late claim; In re Legacy Corp. of Illinois, No. 21-cv-176, 2021 U.S. Dist. LEXIS 150144 (S.D. Ill. Aug. 10, 2021) (Gilbert).

Opinion

Legacy brought this limitation action in federal court in Illinois seeking to limit liability in connection with the sinking of its vessel M/V BOONE. A vessel owned by American Commercial Barge Line struck the submerged vessel, and ACBL sought to file a claim in the limitation proceeding after the deadline for filing claims had passed and the clerk had entered a default against all potential claimants. Legacy was aware that ACBL was a potential claimant and mailed notice to ACBL. However, the notice was not received by ACBL due to a penmanship interpretation error by the Post Office. ACBL asked for leave to file a claim after it actually received notice of the entry of default. Legacy argued that the lack of receipt of actual notice of the filing of the limitation action did not excuse the late filing as ACBL had received constructive notice by the publication of the notice in the newspaper. Judge Gilbert noted, however, that the court had authority to set aside the default for good cause, and he reasoned that not receiving the direct notice due to a third-party’s error was sufficient good cause. He therefore granted ACBL leave to file its claim.

After dismissing the suit on the merits, the judge agreed to sanction the cruise line for spoliation and the plaintiff’s counsel for apparent misrepresentations of the record evidence; Wiegand v. Royal Caribbean Cruises, No. 19-cv-25100 (S.D. Fla. Aug. 11, 2021) (Graham).

Opinion

The litigation involves the death of an 18-month old passenger on the defendant’s cruise ship when she fell from the arms of her grandfather, Salvatore Anello, through an open window and to the dock below. The plaintiffs moved for partial summary judgment on the cruise line’s comparative fault defense, and the cruise line moved for summary judgment that it owed no duty to warn because the damage of placing a child by or on an open window is open and obvious and that it had no notice of the risk-creating danger in connection with the claim of negligent failure to maintain. Starting with the notice argument, Judge Graham held that a prior incident in which a child climbed on top of furniture placed near an open window was not sufficiently similar to provide notice of the fall hazard in this case and that the cruise line’s warnings about sitting, standing, or climbing on railings did not indicate constructive notice of the risk of holding a child over a handrail. Similarly, the remedial measures taken with respect to rails and window heights did not reflect notice of the actual danger, which was lifting a child up to an open window. Noting that Anello testified that he reached his hand out to touch the window and did not feel any glass, Judge Graham held that a reasonable person would have known of the dangers associated with Anello’s conduct, so the cruise line had no duty to warn of the open and obvious danger of exposing his granddaughter to the open window and the dock below. As the cruise line did not establish that the girl’s parents were negligent, and as Anello was not a plaintiff in the suit, Judge Graham granted summary judgment to the plaintiffs dismissing the affirmative defense of comparative negligence. Finally, Judge Graham addressed the cruise line’s argument that the criminal act of Anello (he pled guilty to negligent homicide) was an intervening act and superseding cause that cut off any liability that the cruise line might have had. Although Judge Graham had denied the defense prior to discovery, he held that no evidence had been developed in discovery to establish that the cruise line knew or should have known that there was a risk of an adult lifting a child over the guardrail and through an open window. Applying the presumption that independent illegal acts of third persons are deemed unforeseeable and are therefore the sole proximate cause of the injury, Judge Graham found insufficient evidence to circumvent the presumption. (See August 2021 Update). The plaintiffs have appealed Judge Graham’s dismissal of the case, and, in the interim, Judge Graham addressed the plaintiffs’ arguments that the cruise line should be sanctioned for spoliation of evidence and failing to produce a document during discovery. Two days after the accident, the plaintiffs’ counsel requested that the cruise line preserve video of the area of the incident for 12 hours prior to the accident; however, the cruise line only preserved the footage for 30 minutes before the accident, considering the footage before then to be irrelevant. Judge Graham agreed that the footage was not relevant to the plaintiffs’ claim, rejecting the argument that they needed the footage to determine who opened the window as the plaintiffs’ liability contentions were based on failing to limit the width of the window with bars or screens, failing to provide signage or other markings to indicate when the window was open, failing to design windows that would clearly indicate they were open, and failing to comply with industry standards for window design and safety devices. Nonetheless, the cruise line had been clearly notified of the request, and the destruction indicated the intent to deprive the plaintiffs of the requested footage. As the plaintiffs were not prejudiced, Judge Graham did not believe that severe sanctions were warranted; however, he stated that it would be a dangerous precedent to allow the parties to destroy evidence based on their unilateral determination of its relevance prior to a ruling from the court. Therefore, he held that sanctions were appropriate and ordered the parties to brief the appropriate sanctions subsequent to the appeal. The second sanction involved the plaintiffs’ request that the cruise line describe and produce documents related to the application of ASTM standards on the ship. The corporate representative for the cruise line testified that the cruise line only utilizes ASTM standards with respect to pool vacuum suction. The plaintiffs’ counsel noted that in other litigation, the waterslide inspection policy authored by a third party referenced the ASTM standards, and that policy was produced alongside the cruise line’s policy, which did not mention the ASTM standards. The cruise line amended its responses in the other case to clarify that the policy mentioning the ASTM standards was not adopted by the cruise line, but the plaintiffs’ counsel sought sanctions, representing to the court that the waterslide inspection policy was the cruise line’s policy and was evidence that the ASTM standards were applicable on the defendant’s ships. Judge Graham was “deeply troubled by Plaintiffs’ counsel’s apparent continued disregard for the tenets of professionalism and ethical conduct . . . as their arguments appear to be misrepresentations of the record evidence.” Therefore, he ordered the parties to brief, subsequent to the appeal, the appropriate sanctions that should be issued.

There were fact questions whether the monitor on the dance floor of the cruise ship was an open and obvious condition and whether there was notice to the cruise line; passenger needed medical evidence of causation for some of his injuries but not for others; Katzoff v. NCL (Bahamas) Ltd., No. 19-cv-22754, 2021 U.S. Dist. LEXIS 152053 (S.D. Fla. Aug. 12, 2021) (Cooke).

Opinion

The suit by Jerald Katzoff for injuries sustained when he tripped and fell over a monitor on the dance floor of the NORWEGIAN SKY returns to the Update. (See May 2021 Update). The cruise line moved for summary judgment on several grounds. The cruise line used the video footage of the incident to show that the monitor was in plain view and had been there long enough that any potential danger posed by its placement should have been obvious. Katzoff countered that the lounge was dark and that the video recording flipped between black and white and color, suggesting that the change was because the lighting was too low to support color recording, and Judge Cooke held that summary judgment was inappropriate. The cruise line also argued that there was no evidence that NCL had actual or constructive notice of a dangerous condition. However, the cruise line’s representative testified that there had been other instances of passengers tripping over speakers or other equipment on dance floors, and Judge Cooke considered that to be sufficiently similar to tripping over the monitor to deny summary judgment on the notice issue. Judge Cooke did find an absence of proof for the negligent design claim and granted summary judgment to the cruise line, and she also granted summary judgment with respect to Katzoff’s claims of triceps and rotator cuff tears as there was no expert testimony of a causal connection for these injuries. However, there was evidence in the ship’s records of abrasions and swelling, and Judge Cooke held that Katzoff supported his claim related to these injuries by his own testimony as these injuries did not require expert testimony on causation.

Judge rejected excuses for nonpayment of charter hire; BJC Crewboats v. Creole Operating, LLC, No. 21-860, 2021 U.S. Dist. LEXIS 152704 (E.D. La. Aug. 13, 2021) (Barbier).

Opinion

BJC Crewboats entered into a Master Service Agreement with Oil & Gas Operators, which was assigned to Creole Operating. Oil & Gas Operators also executed an On-Hire Agreement. Pursuant to these agreements, the M/V MISS BRENDA was time chartered to Creole Operating. Creole Operating paid the first invoice for charter hire but did not pay thereafter, asserting that the agreement did not contain a time period for payment, that the contract had been orally modified to provide for payment out of revenues, and that payment was excused by force majeure from the COVID-19 pandemic and extreme weather conditions. BJC Crewboats brought this action to recover the charter hire and moved for summary judgment. Although the MSA was silent with respect to the time for payment, the On-Hire Agreement required payment within 30 days of each invoice. Therefore, Judge Barbier considered the payments to be due in accordance with the agreements, read together. Judge Barbier rejected the argument that the payment provisions of the contracts had been orally modified, as the agreement provided that amendments had to be in writing. Finally, Judge Barbier rejected the force majeure argument as the MSA waived the force majeure defense in the case of failure to make payments. Consequently, Judge Barbier granted summary judgment to BJC Crewboats.

Company trying to develop an aquaculture business in the Gulf of Mexico (which never became operable) could not recover from BP for the DEEPWATER HORIZON/Macondo blowout; In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010 (applies to Gulf Marine Institute of Technology and BioMarine Technologies, Inc. v. BP America Production Co.), No. 13-10286, 2021 U.S. Dist. LEXIS 152590 (E.D. La. Aug. 13, 2021) (Barbier).

Opinion

John Ericsson founded BioMarine Technologies and Gulf Marine Institute of Technology in 1989 and 1995, respectively, to establish an aquaculture facility in the Gulf of Mexico. His attempt in Texas waters ended in 2008, and Ericsson was working on a site on the outer Continental Shelf off the Florida-Alabama state line when the DEEPWATER HORIZON/Macondo blowout occurred. He had obtained permits, vessels, cages, and other equipment and was attempting to raise capital, but his fundraising stopped in 2009 during the Recession. Ericsson asserted that his fundraising would have resumed after the financial crisis subsided and that the business would have earned profits, but the location was contaminated by oil and potential investors lost interest. Ericsson brought this action against BP as the responsible party under the Oil Pollution Act and under the general maritime law and state law. Noting that no commercial aquaculture facility has ever operated in federal waters in the Gulf of Mexico, that Ericsson’s company only had $16,195 in cash at the beginning of 2010, that funding efforts had only managed to raise $1,000, and that the business had no contracts or operations, Judge Barbier held that the plaintiff could not satisfy the but-for standard to establish causation for any damages and dismissed the OPA claim. As Ericsson did not hold a proprietary interest in any property that was physically damaged, the economic loss rule from Robins Dry Dock barred any claim under the general maritime law, and OPA would also displace the claims. Finally, any claims under state law were preempted by OPA and would fail for lack of causation.

Judges declined to apply COGSA in international shipments; COGSA (with its package limit) did not preempt state law and bailment claims for damage after discharge from vessel; COGSA did not apply to fire on truck prior to ocean carriage; MOL (America), Inc. v. Hepta Run, Inc., No. H-18-1096, 2021 U.S. Dist. LEXIS 155032 (S.D. Tex. Aug. 17, 2021) (Hughes); Woods Hole Oceanographic Institution v. ATS Specialized, Inc., No. 17-12301 (D. Mass. Aug. 20, 2021) (Gorton).

Opinion MOL

Opinion Woods Hole

Nike hired Mitsui O.S.K. Lines to ship its sportswear from the factory in Vietnam to an Academy store in Katy, Texas. Mitsui carried four containers on its vessel MOL COMMITMENT to Los Angeles, where they were carried by train to Pearland, Texas. Mitsui hired trucker Hepta Run to transport the containers to the Academy store in Katy, but the containers were stolen from Hepta, which left the containers in an open-air lot without security officers or alarms. Mitsui brought this action against Hepta Run for breach of bailment and moved for summary judgment on its bailment claim. Hepta Run responded by claiming the package limitation from the Carriage of Goods by Sea Act that was allegedly applicable to Hepta Run by the Himalaya Clause in Mitsui’s bill of lading and the US Clause Paramount that made COGSA applicable throughout the contract of carriage. Therefore, Hepta Run argued that its liability was limited to $2000 ($500 for each of the four containers). Reasoning that COGSA only applies from tackle to tackle and that the containers were stolen after that period had expired, Judge Hughes held that Mitsui’s state law and bailment claims were not preempted by COGSA and that Hepta Run did not exercise the requisite care in storing the containers. He therefore awarded judgment to Mitsui in the amount of $1,346,920.82.

The Australian National Maritime Museum arranged for the transportation of Woods Hole Oceanographic Institution’s submarine, the DEEPSEA CHALLENGER, to the Australian Museum for a two-year loan of the submarine. Ocean carrier Wallenius agreed to donate the ocean carriage of the submarine from Baltimore, and ATS Specialized was engaged to transport the submarine via tractor-trailer from Woods Hole, Massachusetts to the Port of Baltimore. The rear wheel of the trailer caught fire during the inland carriage, and the fire spread to the submarine. Woods Hole brought this action against ATS, which asserted that the suit was untimely based on the one-year limitation in the Carriage of Goods by Sea Act. As the fire occurred before the ocean carriage, no bill of lading had been issued by Wallenius, and Judge Gorton held that the carriage was not intended to be a single, through shipment. ATS issued its own domestic bill of lading for the land transportation that did not mention COGSA, and Judge Gorton held that, as the shipment was outside the scope of COGSA, the suit was not barred by the limitation period in COGSA.

Beneficiary of Navy sailor defeated Foster Wheeler’s motion for summary judgment with respect to exposure from its boilers and the argument that Foster Wheeler had no duty to warn about the dangers associated with third-party replacement parts under DeVries; In re Asbestos Litigation; Doris Anne Cox v. Carrier Corp., No. 19-548, 2021 U.S. Dist. LEXIS 155632 (D. Del. Aug. 18, 2021) (Noreika).

Opinion

Harold Cox died from mesothelioma that he claimed resulted from his exposure to products containing asbestos while he served as a boiler tender in the Navy on the USS CHUKAWAN. Doris Anne Cox continued the suit after his death. Cox presented evidence that the decedent worked directly on Foster Wheeler boilers on the vessel, removing the rope seal (believed to contain asbestos) inside the boiler’s doors, that he cleaned gaskets on the boiler door, filling the air with asbestos particles, replaced the gaskets (leading to the release of asbestos particles), cleaned out fire tubes inside one of the boilers (believed to contain asbestos), and that Cox had secondary exposure in the boiler room from others performing similar work. Magistrate Judge Fallon considered the evidence of causation to be sufficient and addressed the question under Air & Liquid Systems Corp. v. DeVries whether Foster Wheeler had a duty to warn because its product required replacement parts that contained asbestos in order for the boilers to function as intended. As the plaintiff cited evidence from Foster Wheeler that asbestos containing calcium silicate was specified by Foster Wheeler for use on every boiler, Magistrate Judge Fallon found a fact question and recommended the denial of Foster Wheeler’s motion for summary judgment. (See August 2021 Update). Judge Noreika found evidence to support Magistrate Judge Fallon’s conclusion that Cox satisfied the maritime standard for causation and that Cox satisfied each of the three “prongs” of Devries. Consequently, Judge Noreika adopted Magistrate Judge Fallon’s recommendation and denied the motion for summary judgment.

Judge ordered interlocutory sale and credit bid in marina’s arrest of vessel where the lease of the marina slip was terminated more than a year earlier and the vessel was still at the slip; Waterfront Newport Beach LLC v. P/V ROYAL PRINCESS, No. 8:20-cv-01420, 2021 U.S. Dist. LEXIS 156685 (C.D. Cal. Aug. 18, 2021) (Scarsi).

Opinion

Waterfront operates a marina and provided wharfage and other services to the owner of the P/V ROYAL PRINCESS. Waterfront terminated the agreement with the vessel owner in February 2020 and was not paid for the vessel’s occupying the slip after April 2020. As the vessel remained at the slip without permission (or payment), Waterfront brought this suit in federal court in California seeking to recover wharfage and other fees due to Waterfront. The vessel was arrested in August 2020, and Waterfront moved for an interlocutory sale almost a year later in July 2021, arguing that the delay in bonding the vessel was unreasonable, that the vessel would deteriorate, and that the expense of keeping the vessel was excessive or disproportionate. Agreeing that the delay of a year was unreasonable and that the expense of keeping the vessel was excessive, Judge Scarsi ordered the interlocutory sale. As there were no other claims against the vessel and as Waterfront’s lien was senior, Judge Scarsi held that Waterfront could present a credit bid in the amount of its lien plus the U.S. Marshal expenses and additional custodia legis expenses.

Scuba-diving cruise business failed for reasons other than the DEEPWATER HORIZON/Macondo blowout; In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010 (Loggerhead Holdings, Inc. v. BP P.L.C.), No. 2:10-md-2179 (16-05952), 2021 U.S. Dist. LEXIS 156565 (E.D. La. Aug. 19, 2021) (Barbier).

Opinion

Loggerhead operated a scuba-diving cruise business in the northern Caribbean and Bahamas using two vessels, the NEKTON PILOT and the NEKTON RORQUAL. Loggerhead operated the business for more than two decades, but it began having financial difficulties in 2007 that continued through the DEEPWATER HORIZON/Macondo blowout on April 20, 2010 (annual operating losses of half a million dollars a year from 2007 to 2009). One of the vessels was drydocked for an extended refit in September 2009, and Loggerhead planned to pay for the refit with income from the other vessel, except that the other vessel encountered mechanical problems, resulting in cancelled cruises. Without any working vessels, Loggerhead posted on its website that it was ceasing operations on May 17, 2010. Loggerhead brought this action against BP under the Oil Pollution Act of 1990 and the general maritime law, arguing that it had sustained damages when one of the vessels sailed through oil and because its customers cancelled trips out of concerns related to the oil spill. There were no records that one of the vessels had sailed through oil (and no invoices for repair due to contact with oil), and it was unlikely that oil came within 100 miles of its position. More importantly, Judge Barbier found no evidence that Loggerhead’s alleged lost profits and impaired earning capacity were due to the oil spill. Accordingly, he denied Loggerhead recovery under OPA or the general maritime law.

Arbitration clause in seaman’s collective bargaining agreement did not conflict with forum-selection clause in the seaman’s employment contract; Martinez v. MSC Cruises S.A., No. 21-61399, 2021 U.S. Dist. LEXIS 159070 (S.D. Fla. Aug. 20, 2021) (Singhal).

Opinion

Darwin Humberto Cortez Martinez, a citizen of El Salvador, claimed to suffer from aggravations of his kidney and cardiovascular injuries while serving as a crewmember of the MSC POESIA. His employment was subject to a collective bargaining agreement between MSC and an Italian trade union that contained a London arbitration clause. However, his employment contract contained a forum-selection clause (also a Panama choice-of-law clause) requiring disputes related to his employment on the vessel to be adjudicated in Panama, where the vessel was flagged. Martinez brought this action in federal court in Florida under the Jones Act and general maritime law, and MSC moved to compel arbitration. Martinez argued that the arbitration and forum-selection clauses conflicted, but Judge Singhal noted that the employment contract provided in the sentence following the forum-selection clause that all rights and obligations within the collective bargaining agreement applied to the employment contract. As the collective bargaining agreement expressly required arbitration of the claims in the suit, Judge Singhal held that the New York Convention (Convention on the Recognition and Enforcement of Foreign Arbitral Awards) was applicable and compelled arbitration.

Sanctions were awarded for destruction/loss of cell phone data and text messages; In re Skanska USA Civil Southeast Inc., No. 3:20-cv-05980 (N.D. Fla. Aug. 23, 2021) (Cannon).

Opinion

Skanska was engaged by the Florida Department of Transportation to rebuild the Pensacola Bay Bridge. During Hurricane Sally in September 2020, several barges used in the construction broke free and caused damage to the bridge and to other property. Numerous businesses and property owners brought claims in the limitation proceedings brought by Skanska with respect to its barges, and we have previously addressed the scope of discovery (see July 2021 Update) and jurisdictional and procedural issues in the limitation actions. (See August 2021 Update). The claimants sought production of electronic discovery from Skanska, including production of cell phone data, but cell phone data was deleted or lost for five of the 13 custodians of cell phone data. The custodians had received a written litigation hold notice, but Magistrate Judge Cannon concluded that Skanska did not take reasonable steps to preserve the cell phone data for these custodians, allowing employees to delete text messages and not requiring cell phone data to be backed up and not suspending its routine document destruction policies. Although some of the deleted messages were produced from other custodians, Magistrate Judge Cannon did not find that offering the deposition of the custodians was sufficient to remedy the loss of the data. Concluding that the spoliation constituted bad faith (lack of effort to collect the data until seven months after the litigation hold), Magistrate Judge Cannon held that the evidence was presumed to be prejudicial. Magistrate Judge Cannon did not find that dismissal of Skanska’s limitation actions was appropriate, but she did conclude that adverse inferences were justified that the information in the cell phone data was favorable to the claimants and that it was not these custodians’ conduct that caused the barges to go adrift. Finally, Magistrate Judge Cannon declined to issue a monetary sanction in the amount of the limitation funds (over $7 million) and instead held that the claimants were entitled to fees and costs incurred in prosecuting the motion for sanctions.

Son of deceased seaman had the sole right to recover for the seaman’s death, and the claims of the seaman’s father were dismissed; In re Belden Investments LLC, No, 2:20-cv-01486, 2021 U.S. Dist. LEXIS 159227 (W.D. La. Aug. 23, 2021) (Cain).

Opinion

James Charles Duddleston leased a houseboat from Belden Investments to use as his living quarters while performing surveying work on the Louisiana coast for Lonnie G. Harper & Associates. After working all day on a vessel not owned by Belden, Duddleston returned to the houseboat and showed signs of heat stroke, from which he died. Duddleston’s beneficiaries brought suit in state court, alleging that the negligence of Belden and the unseaworthiness of the houseboat contributed to Duddleston’s death. The suit alleged that Duddleston was a seaman under the Jones Act and also sought recovery for negligence under Louisiana law. The petition sought recovery of punitive damages, loss of society and companionship, loss of love and affection, and for the mental anguish and grief of the beneficiaries. Belden then brought this limitation action in federal court, and the beneficiaries presented a claim in the limitation action with the same contentions that they made in the state suit. Belden moved in the limitation action to dismiss the claims for non-pecuniary loss, and the beneficiaries responded that they were entitled to recover non-pecuniary damages under the general maritime law and under Louisiana law because Duddleston’s death was from a tort in state waters. Reasoning that the claims were brought for the death of a seaman, Judge Cain cited Miles and held that the beneficiaries could not recover for the non-pecuniary loss claims, stating: “maritime law applies exclusively to alleged torts that occur on navigable waters, irrespective of whether those waters are territorial waters or not.” (See July 2021 Update). Belden then moved to dismiss the claim of the seaman’s father, Glen Ray Duddleston, for lack of standing, and Duddleston moved to dismiss the claim without prejudice, reserving the right to pursue the action in state court. Judge Cain held that the Jones Act provides that the seaman’s child recovers to the exclusion of the decedent’s parent. As the decedent’s son had filed claims in the limitation action, the father had no right of recovery and no standing. Accordingly, Judge Cain dismissed the father’s action with prejudice.

Eight-corners rule for duty to defend did not apply to P&I policy; judge educated vessel owner on nature of maritime lien and vessel arrest and declined to release the vessel without security; Champagne v. M/V UNCLE JOHN, No. 21-476, 2021 U.S. Dist. LEXIS 158585 (E.D. La. Aug. 23, 2021) (Zainey).

Opinion

Robert M. Champagne III and Elizabeth G. Champagne, owners of waterfront property in Houma, Louisiana, brought this suit seeking to recover for damage from an allision with their concrete bank cover by the M/V UNCLE JOHN, owned by Alexis Marine and operated by A&T Maritime. The action was brought in personam against the owner and operator of the vessel and in rem against the UNCLE JOHN. After the Marshal arrested the vessel, the Champagnes moved to appoint their contractor, Sea Sales, as substitute custodian, and the court granted the motion and permitted the movement of the vessel within the district. Sea Sales engaged a towing contractor, and the vessel was damaged during the tow. Sea Sales paid for repair to the vessel, but the vessel owner brought a counterclaim against the Champagnes in the event there is additional damage or if the repairs were done improperly. The Champagnes moved to dismiss the counterclaim, and Judge Zainey agreed, noting that there were no allegations that the Champagnes acted negligently in hiring Sea Sales and that there was no authority in the maritime law that would make a seizing creditor liable for the acts of the substitute custodian simply by hiring it. Judge Zainey also found meritless the argument that the hold harmless agreement, signed by the Champagnes in favor of the United States and the Marshal, inured to the benefit of the owner of the arrested vessel. The owner of the vessel did not have insurance for the vessel and did not post security for the vessel in the five months after it was arrested. That resulted in a flurry of motions: the charterer seeking payment of defense costs from its P&I carrier, the owner seeking a release of the vessel without posting security, and motions to set the amount of security and for interlocutory sale. The charterer’s P&I insurer argued that there was no coverage under the policy because the policy named the UNCLE BLUE, not the UNCLE JOHN. The charterer argued that the owner substituted the UNCLE JOHN after the UNCLE BLUE became inoperable and the Automatic Attachment Clause in the policy continued coverage for the UNCLE JOHN. However, the insurer did not learn of the substitution or the allision until almost a year after the casualty, despite the reporting requirement in the policy. Citing the eight-corners rule for interpreting the duty to defend, the charterer argued that the insurer should reimburse the charterer for its defense costs with respect to the suit. The carrier responded that the P&I policy did not contain a duty to defend and that a decision on whether it had a duty to reimburse defense costs was not subject to the eight-corners rule and necessitated a decision on coverage and the defenses that were asserted. Judge Zainey agreed that the eight-corners rule was inapplicable and that the obligation to cover the claim was not separate from the duty to reimburse the insured for defense costs. Therefore, the coverage issues would have to be fully presented to the court. Judge Zainey then considered the motion to release the vessel and for its interlocutory sale. Judge Zainey reasoned that the owner was laboring under a “fundamental misunderstanding of the nature of in rem proceedings against the vessel’s owner.” The charterer may have been operating the vessel at the time of the allision, but the plaintiffs arrested the vessel to assert a maritime lien against the vessel as a tortfeasor. The in rem claim is separate from the in personam claims against the owner and charterer. The plaintiffs were not “persecuting” the owner for its lack of financial ability to post security. They were enforcing their maritime lien for payment of damages caused by the vessel. The arrest and sale of the vessel might cause a financial hardship on the vessel owner, but “the sole party responsible for that unfortunate circumstance” was the owner who did not properly insure the vessel. Therefore, Judge Zainey declined to release the vessel without security. Judge Zainey also declined to hold a hearing to determine the value of the vessel as it would appear to be an “exercise in futility” with the owner giving no indication that it was willing or able to post security regardless of the value that the judge might assign to the vessel. Judge Zainey gave the owner 30 days to either post security or reach agreement with the plaintiffs, after which he agreed that the plaintiffs could move to have the vessel sold at an interlocutory sale.

Judge dismissed maintenance and cure claims on behalf of deceased seaman when there was no evidence of medical bills owed or any maintenance expenses before the seaman died; state claims were preempted by the Jones Act and DOHSA; only the personal representative could maintain the action, and she could not bring a claim on her own behalf as she was not married to the seaman; Deakle v. Westbank Fishing, LLC, No. 20-1554, 2021 U.S. Dist. LEXIS 158587 (E.D. La. Aug. 23, 2021) (Vance).

Opinion

Bryan Urby was working as a fisherman on the F/V MARIA C when he began to show signs of heat distress. The Coast Guard airlifted him to a hospital in New Orleans where he was pronounced dead. Christy Deakle, personal representative of the seaman and his two children (and mother and legal guardian of the two children), brought this action against the owner and operator of the boat under the Jones Act, DOHSA, and Louisiana state law. The defendant filed three motions for partial summary judgment, and Judge Vance granted all three. First, she held that the claims under Louisiana law were preempted by the Jones Act and DOHSA. Judge Vance also dismissed the claims for maintenance and cure and for punitive damages for failure to pay maintenance and cure as the plaintiffs did not present any evidence that they incurred any expenses for food or lodging during the period when Urby was ill and the hospital bill they submitted had a balance of $0.00 after a negative adjustment and a patient deceased adjustment. As no maintenance and cure was owed, there was no basis for an award of punitive damages. Judge Vance dismissed the separate claims brought under the Jones Act and DOHSA by one of the children as only the personal representative could bring the claims. Finally, Judge Vance dismissed the claims brought by Christy Deakle in her own capacity. Although she was the mother of Urby’s children, she was not married to Urby. Therefore, she did not fit within any of the categories of beneficiaries under the Jones Act (by incorporation of the FELA) or DOHSA.

Judge dismissed (for lack of personal jurisdiction) New Zealand excursion operators in suit by passengers injured during volcanic eruption on shore excursion but retained some claims against the cruise line; Barham v. Royal Caribbean Cruises Ltd., No. 20-22627, 2021 U.S. Dist. LEXIS 158428 (S.D. Fla. Aug. 23, 2021) (Moreno).

Opinion

Lauren Barham and Matthew Urey were honeymooners on a cruise in New Zealand. They signed up for the shore excursion to White Island, to view an active volcano, but the volcano erupted when they were on the island, causing the passengers to suffer serious injuries. The passengers sued the excursion operators and cruise line in federal court in Miami, and the excursion operators moved to dismiss the action for lack of personal jurisdiction. Although the excursion operators were New Zealand entities, the passengers argued that the entities were subject to jurisdiction in Florida from the contract between the excursion operators and the cruise line that contained a choice-of-law provision designating Florida law and selecting Florida as the place of exclusive jurisdiction. Agreeing with the other judges in the Southern District of Florida, Judge Moreno held that the passengers could not use the consent-to-jurisdiction clause in the contract between the excursion operators and cruise line to support jurisdiction in personal injury cases arising during the foreign excursion. Turning to the claims asserted against the cruise line, Judge Moreno noted that the negligent misrepresentation claim was different than the standard case involving a general promise of safety followed by unlucky harm. In this case it was “empirically demonstrable” that a volcanic eruption was more likely than usual, and some of the alleged misrepresentations were more specific than promises of safety. Consequently, Judge Moreno declined to dismiss that count. Judge Moreno dismissed the counts based on joint venture, third-party beneficiary, and breach of a non-delegable duty of safe passage, but he held that the allegations of negligent selection/retention, negligent failure to warn, and general negligence were sufficiently pleaded.

Omission by vessel owner of information regarding its criminal conviction for fraud during renewal of its marine insurance policy voided the policy based on uberrimae fidei; Shoreline Foundation Inc. v. New York Marine & General Insurance Co., No. 20-60191, 2021 U.S. Dist. LEXIS 158939 (S.D. Fla. Aug. 23, 2021) (Dimitrouleas).

Opinion

The broker for Shoreline Foundation requested a quote to renew its marine insurance policy with New York Marine on December 12, 2018, and the policy was renewed for the period beginning on February 15, 2019. Shoreline’s vessel sank on September 8, 2019, and New York Marine denied the claim on the ground that the insured made a material misrepresentation when it answered “N” to the question whether the applicant had been indicted or convicted of any degree of the crime of fraud, bribery, arson, or any other arson-related crime in connection with this property or any other property. In October 2018, the insured signed a factual proffer that it had performed work under a contract with the Coast Guard without performing the required surveys, and a judgment was entered against it in February 2019 imposing a fine and sentencing it to probation for false, fictitious, and fraudulent claims. The insured brought this action in state court in Broward County, Florida, and the insurer removed the case to federal court and moved for summary judgment on the ground that the policy was void under the uberrimae fidei doctrine based on the material misrepresentation made by the insured during the renewal. The insured attacked the affidavit signed by the underwriter (who stated that he would not have renewed the policy at the premium that was charged if he had been aware of the fraud judgment) as speculative, conclusory, and insufficient to support the motion. Judge Dimitrouleas disagreed, pointing out the specific facts alleged about the materiality of the fraud to the renewal. Judge Dimitrouleas did not believe that it was necessary that the insured should be permitted to cross examine the underwriter before consideration of the motion and held that the policy was void under uberrimae fidei.

Employer failed to establish causality element of McCorpen defense to maintenance and cure in its motion for summary judgment; judge declined to bifurcate the limitation case in the absence of proper stipulations; In re Mike Hooks LLC, No. 2:20-cv-00959, 2021 U.S. Dist. LEXIS 160505, 160521 (W.D. La. Aug. 24, 2021) (Cain, Kay).

Opinion maintenance and cure

Opinion bifurcation

Charles McCoy claimed to have suffered two injuries during his service as a second cook for the E. STROUD. He asserted that he injured his back while moving boxes of food on December 28, 2018, and that he injured his leg, back, and foot when he stepped through a rusty grating on Alabama Shipyard’s dock in Mobile, Alabama, on January 10, 2019. McCoy brought suit in the district court of Calcasieu Parish, Louisiana, and his employer, the owner of the E. STROUD, filed this limitation action in federal court in the Western District of Louisiana. Citing McCoy’s failure to disclose a significant history of cervical spine issues on his employment application in 2016, Hooks filed a motion for summary judgment in the limitation action, contending that McCoy was not entitled to recover maintenance and cure for his December 2018 accident based on the McCorpen willful concealment defense. Judge Cain concluded that Hooks had established that McCoy intentionally concealed or misrepresented his prior condition but his employer had not established the causal connection between the concealment and McCoy’s complaints from the December accident. Hooks relied on McCoy’s testimony that the December accident resulted in injuries to his neck and back, but there were no medical records establishing the specific region of the spine that was involved in the December accident. As the injury might have occurred in a separate region of the spine, Judge Cain found the evidence to be insufficient. Magistrate Judge Kay then addressed McCoy’s motion to bifurcate the limitation action, severing the issues of exoneration and limitation and allowing all non-limitation actions to be resolved in the state action. Magistrate Judge Kay noted that the court had “considerable discretion” on how to try the limitation and non-limitation issues. However, the primary reason for bifurcation was to minimize prejudice to McCoy’s rights to pursue his common-law remedies. In this case, McCoy had not offered any stipulations to lift the limitation stay, and claimant Alabama Shipyard indicated that it might not enter into a stipulation. Although Magistrate Judge Kay declared that she had discretion to bifurcate the case even in the absence of stipulations, she did not consider bifurcation was appropriate or necessary, finding no certainty that Hooks’ limitation rights would be protected if the matter were bifurcated.

Docking vessels that overhang the property line of a neighbor’s wharf is not automatically a trespass; Waterfront Petroleum Terminal Co. v. Detroit Bulk Storage, Inc., No. 19-13621, 2021 U.S. Dist. LEXIS 160531 (E.D. Mich. Aug. 25, 2021) (Cleland).

Opinion

This case involves a dispute between the owner and lessor of adjoining facilities on the Detroit River. Vessels at the Detroit Dock facility regularly extended in front of Waterfront’s neighboring property, blocking access to a portion of the property where Waterfront operated its own bulk dock, but Detroit Dock’s employees did not trespass on Waterfront’s dock. Waterfront argued that, as a riparian owner, it had the right to prohibit Detroit Dock from mooring a ship in front of Waterfront’s bulk dock. Applying state law, Judge Cleland held that the docking of vessels that overhang the property line but are not tied to a neighbor’s wharf does not automatically constitute a trespass as a matter of law; however, he did rule that the court would consider a number of factors to determine if an injunction should be issued, including the historical use of the property, the effect of the proposed use on the watercourse, the safety of the proposed use, the local custom regarding dock usage, and any harm caused by the obstruction of other riparian rightsholders.

Lack of expert evidence caused dismissal of BELO suit; Smith v. BP Exploration and Production, Inc., No. 4:19-cv-04988, 2021 U.S. Dist. LEXIS 161498 (S.D. Tex. Aug. 26, 2021) (Hanks).

Opinion

Southern Smith brought this Back-End Litigation Option suit seeking to recover from BP for exposure to chemicals while performing clean-up work after the DEEPWATER HORIZON/Macondo blowout. Smith did not designate experts or provide expert reports in accordance with the Docket Control Order, and BP moved for summary judgment on the ground that Smith could not proved causation for his later-manifested physical conditions. In the absence of medical evidence or explanation for missing the deadlines, Judge Hanks granted summary judgment to BP.

Kenneth G. Engerrand
President, Brown Sims, P.C.

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Quote:

At the Court’s hearing on December 20, 2019, the Court notified [Plaintiff’s counsel] that the Court felt that it was necessary to express its concern and disappointment with Plaintiff’s counsel . . . . The Court stated that notwithstanding the Court having issued a show cause order (considering the imposition of enhanced sanctions against Defendants Kris Henry and Aloha Ocean Excursions) and having granted an extension of time for Plaintiff to respond, [Plaintiff’s counsel] filed a rambling brief with his not uncommon impudent and insolent remarks regarding this Court. The Court continued that it believed [Plaintiff’s counsel] would concur that such conduct was not becoming for an attorney practicing in federal court. The Court then declared that it had been overly lenient with [Plaintiff’s counsel] ‘s behavior to date—but, that from now on, the Court would no longer tolerate such improper behavior and [Plaintiff’s counsel] is put on notice that such continued actions will be sanctioned. The Court went on to detail the specific contentious remarks made in [Plaintiff’s counsel]’s response.

Notwithstanding the foregoing notice to [Plaintiff’s counsel], on May 28, 2021, [Plaintiff’s counsel] filed Plaintiff Barnes’s First Motion for Sanctions Against Defendants Henry and AOE, ECF No. 836 (the “Plaintiff’s Motion for Sanctions”) which appears to warrant the Court’s consideration of sanctions against [Plaintiff’s counsel]. The Court will now point to such statements in Plaintiff’s Motion for Sanctions:

First, [Plaintiff’s counsel] began the Plaintiff’s Motion for Sanctions stating:

I have been reluctant to address the Court because of the Court’s 12/20/2019 EP: Order to Show Cause hearing regarding Sanctions [Docket 619] where there the Court put on the record that it will no longer allow the continuance of [Plaintiff’s counsel]’s behavior in and towards the Court. The Court reminded [Plaintiff’s counsel] that if the behavior continued, he may be sanctioned.

Pl.’s Mot. for Sanctions at 4. Yet [Plaintiff’s counsel] then disingenuously and sarcastically went on to say:

So, I would like to carefully bring this to the Court’s attention without indicating that the Court knew all along that Defendant Henry would ignore the Court’s Order and that he could rely upon the Court’s lack of commitment to enforce any meaningful sanctions against Defendant Henry who has used his constitutional right to declare bankruptcy to get out of paying Plaintiff maintenance and cure.

Id. at 4.

The second statement which the Court feels may warrant sanctions reads: “After the Court magnanimously granted Defendant Henry’s request to lower his sanctions payment to $500.00 per month in [Docket 819], filed on 12/28/2020 Order Regarding Payment of Enhanced Sanctions, as a New Year’s gift, Defendant Henry made one $500.00 payment and no other payments.” Id.

The relevant third statement by [Plaintiff’s counsel] in Plaintiff’s Motion for Sanctions reads: “The Court also graciously gave its blessing for Defendant Henry to use the permit to earn a living while he passes the time awaiting the recent lunar eclipse.” Id. at 5.

***

With those principles in mind, the Court sets a hearing on this Order to Show Cause Whether Sanctions Should be Imposed to be held on Thursday, August 5, 2021, at 11:00 a.m. The Court directs [Plaintiff’s counsel] to file a brief by Monday July 26, 2021, responding to this show cause Order whether he should be subject to sanctions for his disrespectful and sarcastic remarks toward this Court despite being warned against such conduct.

Barnes v. Sea Hawai’i Rafting, LLC., No. 13-2, 2021 U.S. Dist. LEXIS 125094 (D. Haw. July 6, 2021) (Kay).

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© Kenneth G. Engerrand, August 31, 2021; redistribution permitted with proper attribution.

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