June 2024 Longshore/Maritime Update (No. 301)
Notes from your Updater:
On April 19, 2024, Judge Trenga of the United States District Court for the Eastern District of Virginia dismissed the antitrust suit filed on behalf of a class of naval architects and marine engineers against Navy shipbuilders (asserting an “unwritten gentlemen’s agreement” not to “affirmatively recruit one another’s naval engineers” or naval architects), holding that the plaintiffs had not pleaded sufficient facts to toll the statute of limitations. See Scharpf v. General Dynamics Corp., No. 1:23-cv-1372, 2024 U.S. Dist. LEXIS 72184 (E.D. Va. Apr. 22, 2024). On May 20, 2024, the plaintiffs filed their notice of appeal to the Fourth Circuit.
On May 2, 2024, a majority of a panel of the Eleventh Circuit reversed the decision of the district court that the Center for a Sustainable Coast did not have standing to challenge the issuance of a permit allowing the construction and presence of a dock on Cumberland Island on the Georgia coast based on the failure to conduct a full environmental review under the National Environmental Policy Act, even though the dock had already been constructed. See Center for a Sustainable Coast v. U.S. Army Corps of Engineers, No. 22-11079, 2024 U.S. App. LEXIS 10758 (11th Cir. May 2, 2024) (Grant). Judge Tjoflat dissented, stating: “When boiled down, given the Center’s goal is the dock’s removal, this case is nothing but a waste. It will result in a hypothetical district court decision, the sort of exercise Article III abhors.”
In our December 2023 Update, we reported that a federal jury in California convicted Captain Jerry Boylan of violating the Seaman’s Manslaughter Statute in connection with the deaths of 33 passengers and a crew member who were trapped on the dive boat CONCEPTION in 2019 after a fire broke out on the vessel near Santa Cruz Island in the Pacific Ocean. See United States v. Boylan, No. 2:22-cr-482 (C.D. Cal.). In our May 2024 Update we reported that Judge Wu issued his tentative ruling (D.E. 421), denying Boylan’s motions for new trial and then adopted his tentative ruling as his final ruling. On May 2, 2024, Judge Wu sentenced Boylan to 48 months in prison (declining the government’s request to sentence him to the statutory maximum of 10 years) and a three-year period of supervised release. Judge Wu will separately determine the amount of restitution that Boylan is ordered to pay.
The Update has addressed the litigation in federal court in Washington involving Harley Franco and the companies related to Harley Marine Services after he was terminated as CEO of Harley Marine. See March and May 2023 Updates. Franco also brought a suit in the Superior Court of Kings County, Washington against his corporate business partner, MacQuarie Capital, related companies, and two members of the board of Harley Marine Services, alleging breach of contract, breach of fiduciary duties, tortious interference with his employment contract, and defamation. The case was tried to a jury, which found in favor of MacQuarie on the claims of breach of contract and breach of fiduciary duty and in favor of Franco on his claims for defamation and tortious interference with contractual relations, awarding $75 million based on a statement in a lawsuit in Delaware that both defamed Franco and that was the means by which MacQuarie tortiously interfered with his employment contract. The defamatory statement was: “In short, Franco stole two significant company assets – tow winches with a collective value of $1,225,253 — by including them in a sale transaction involving two personal entities.” Judge Parisien directed a verdict in favor of MacQuarie on the defamation and tortious interference claims because the statement was made in the course of litigation, and the Washington Court of Appeals affirmed that decision, concluding that the statement made in the lawsuit was absolutely privileged and could not be the basis for a defamation or tortious interference action. Franco v. MacQuarie Capital (USA) Inc., No. 84292-7-1, 2024 Wash. App. LEXIS 912 (Wash. App. Div. 1 May 6, 2024) (Chung).
On May 10, 2024, the USDOL – OALJ announced:
The United States Department of Labor, Board of Alien Labor Certification Appeals (BALCA) and Office of Administrative Law Judges (OALJ) National, Washington, D.C., and Cherry Hill offices have relocated to the Frances Perkins building in Washington, D.C.
Effective immediately, all mail to these offices should be sent to the following address:
U.S. Department of Labor
Office of Administrative Law Judges
200 Constitution Ave. NW
Room S-4325
Washington, DC 20210
The telephone and fax numbers for all offices remain the same.
The difficulties in salvaging “the only identified pirate shipwreck ever discovered,” the WHYDAH GALLEY under the command of Sam Bellamy, which sank off the coast of Cape Cod in 1717 (rumored to have chests of treasure from at least 53 other vessels that were robbed by the crew of the WHYDAH GALLEY), pale in comparison to the land-based disputes that have arisen from the salvage efforts. See Buddenhagen v. Clifford, No. 2019-0258, 2024 Del. Ch. LEXIS 183 (Del. Ch. May 10, 2024) (Cook).
On May 16, 2024, the Supreme Court issued its unanimous decision in the non-maritime case, Smith v. Spizzirri, No. 22-1218, 2024 U.S. LEXIS 2170 (U.S. May 16, 2024) (Sotomayor) on this question: Whether Section 3 of the Federal Arbitration Act requires district courts to stay a lawsuit pending arbitration, or whether district courts have discretion to dismiss when all claims are subject to arbitration. The resolution of the question is procedurally important because an order compelling arbitration is not immediately appealable (with a limited exception), but the denial of an arbitration request can be appealed. The Court held that district courts lack discretion to dismiss the case when judges compel arbitration and stay the case. Therefore, the party opposing arbitration has no basis to seek appellate review of the order compelling arbitration before the arbitration is initiated.
In our March 2021, May 2022, September 2022, April 2023, and May 2024 Updates, we reported on the litigation arising after the drillship DPDS1 broke free when Hurricane Harvey made landfall near Corpus Christi, Texas in 2017 and on the claims and counterclaims involving the owner of the drillship and the tugs that were helping keep the drillship in place. Ultimately, the Fifth Circuit affirmed that towage law did not apply to the conduct of the tugs, that the owner of the drillship did not act reasonably in failing to evacuate, and that the parties had incorporated the terms of the tugs’ tariff to the work being performed by the tugs. See Paragon Asset Co. v. American Steamship Owners Mutual Protection and Indemnity Association, Inc., No. 23-40209, 2024 U.S. App. LEXIS 9982 (5th Cir. Apr. 24, 2024) (Higginson). The owner of the drillship sought rehearing en banc, and on May 29, 2024, the Fifth Circuit denied both panel rehearing and rehearing en banc, with no member of the panel or judge in regular active service requesting a poll for rehearing en banc.
In our March 2023 Update, we reported that the Supreme Court (in Chevron USA, Inc. v. Plaquemines Parish, No. 22-715) declined to grant a writ of certiorari to consider the affirmance of a remand to the state court by the Fifth Circuit in Plaquemines Parish v. Chevron USA, Inc., No. 22-30055, 2022 U.S. App. LEXIS 28733 (5th Cir. Oct. 17, 2023). That appeal involved cases filed in Louisiana state courts by coastal Parishes against energy companies seeking to recover restoration costs for loss of land along the Louisiana Gulf Coast allegedly resulting from production practices carried out by the energy companies going back to World War II.
After the Supreme Court declined to hear the petition from the energy companies, Judge Zainey of the United States District Court for the Eastern District of Louisiana issued an order remanding to state court the suit brought by Plaquemines Parish and the State of Louisiana against a host of energy companies. The energy companies argued that they had threaded the needle to satisfy the “acting under” requirement for federal officer removal because that case involved a World War II-era refinery contract. Judge Zainey was unpersuaded, answering that the refinery contract satisfied neither the acting-under nor the related-to requirements (the energy company “may have acted under a federal officer when refining oil in Port Arthur, Texas but it did not act under a federal officer when producing that oil in Louisiana”). See Parish of Plaquemines v. Northcoast Oil Co., No. 18-5228, 2023 U.S. Dist. LEXIS 67290 (E.D. La. Apr. 18, 2023). The energy companies appealed the order of remand to the Fifth Circuit (No. 23-30304), and Judge Zainey stayed the order of remand pending the appeal. Judge Morgan of the United States District Court for the Eastern District of Louisiana reached a similar result in Parish of Plaquemines v. Rozel Operating Co., No. 18-5189, 2023 U.S. Dist. LEXIS 81541 (E.D. La. May 10, 2023). The energy companies appealed the order of remand (No. 23-30336), and Judge Morgan stayed the order of remand pending the appeal. See June 2023 Update. On June 13, 2023, Judge Summerhays of the United States District Court for the Western District of Louisiana declined to reconsider his decision remanding 42 lawsuits (removed under the Federal Officer Removal Statute) that were brought by several Louisiana parishes against energy companies based on violations of permits under the State and Local Coastal Resources Management Act of 1978 and associated regulations, rules, and ordinances in connection with the defendants’ oil exploration and production activities in coastal parishes. See Parish of Cameron v. Apache Corp. (of Delaware), No. 2:18-cv-688, 2023 U.S. Dist. LEXIS 103010 (W.D. La. June 13, 2023). Judge Summerhays granted a stay of the remand pending appeal, and the energy companies filed a notice of appeal to the Fifth Circuit (No. 23-30422). Judge Fallon also stayed remand orders pending appeal to the Fifth Circuit in Parish of Jefferson v. Destin Operating Co., No. 2:18-cv-5206 (appeal No. 23-30225); Plaquemines Parish v. Exchange Oil & Gas Co., No. 2:18-cv-5215 (appeal No. 23-30291); and Plaquemines Parish v. Great Southern Oil & Gas Co., No. 2:18-cv-5227 (appeal No. 23-30303). See August 2023 Update. On October 11, 2023, the Fifth Circuit granted the motion to lift and vacate the stay pending appeal in Plaquemines Parish v. Chevron USA, Inc., No. 23-30291, 2023 U.S. App. LEXIS 27249 (5th Cir. Oct. 11, 2023) (Higginson) in a published order, concluding that the balance of equities weighed against issuance of a stay.
Meanwhile, the energy companies requested that the Supreme Court issue a stay of the trial scheduled to begin in state court in Cameron Parish, Louisiana on November 27, 2023 (the energy companies argued that the case should be transferred to a venue where the jurors did not have a financial interest in the outcome). See No. 23A364, BP America Production Co. v. Parish of Cameron, Louisiana. On November 7, 2023, the Supreme Court declined to grant the stay. See December 2023 Update.
On May 29, 2024, the Fifth Circuit (with a dissent by Judge Oldham) held that the actions of the energy companies with respect to oil production did not have a sufficient connection with the governmental direction in their federal refinery contracts during World War II to permit removal of the cases under the Federal Officer Removal Statute. Accordingly, the Fifth Circuit affirmed the remand of the suits by Louisiana parishes against the energy companies. See Plaquemines Parish v. BP America Production Co., No. 23-30294, 2024 U.S. App. LEXIS 12890 (5th Cir. May 29, 2024) (Davis).
In our March 2024 Update, we reported the decision of the Ninth Circuit in Siver v. Kaiser Steel Resources, Inc., No. 22-2098, 2024 U.S. App. LEXIS 3956 (9th Cir. Feb. 21, 2024) (per curiam), in which the Ninth Circuit agreed with the ALJ and BRB that the claim of a longshore worker’s widow for LHWCA benefits was barred by Section 33(g) of the LHWCA even though the widow disclaimed recovery in a third-party asbestos suit, as the widow as still party to the suit when it settled and was included in the release. The Estate sought rehearing and rehearing en banc, but, on May 30, 2024, the panel denied rehearing, and no judge requested a vote on whether to rehear the matter en banc.
On the LHWCA Front . . .
From the federal appellate courts
This is a Black Lung Benefits Act case in which the appellate procedure is the same as in LHWCA cases. The claim for survivor’s benefits of Doris Sloan, widow of Gurstle Sloan who worked as a coal miner for Drummond Co. for 16 years, was denied by an administrative law judge, and the denial was affirmed by the Benefits Review Board on December 3, 2019. Sloan’s motion for en banc reconsideration was denied on June 25, 2020, and Sloan filed a second motion for reconsideration that was denied on January 12, 2021. After denial of her first motion for reconsideration, Sloan filed a petition for review with the Eleventh Circuit. It was postmarked August 24, 2020, and it was received by the Eleventh Circuit on August 25, 2020, 61 days after the Board ruled on her first motion. Sloan explained that she did not receive the Board’s order denying her first motion until July 20, 2020 because her attorney was sheltering in place because of COVID and could not receive certified mail. The Director argued that the Eleventh Circuit lacked jurisdiction because the petition was filed 61 days after the decision on the first motion for reconsideration, and the deadline was not subject to equitable tolling. The Director also argued that the second motion for reconsideration did not toll the time to appeal the December 2019 decision, and that the appellate court lacked jurisdiction to review either motion for reconsideration because the motions alleged error based on the same record that was before the administrative law judge. Writing for the Eleventh Circuit, Chief Judge Prior first held that the petition was not timely filed. Sloan argued that Federal Rule of Appellate Procedure 26(c) added three days to the 60-day window to file the petition, but Chief Judge Prior disagreed, noting that the deadline is not affected by the date of service on the petitioner or her attorney. The filing period is 60 days and is not extended by Rule 26(c). Chief Judge Prior added the second motion for reconsideration did not extend her time to appeal from the Board’s decision as the regulations do not contemplate successive motions for reconsideration. Her time to appeal ran despite the second motion. As the deadline is jurisdictional (“jurisdictional rules have harsh consequences”), Chief Judge Pryor held that it is not subject to equitable tolling. Therefore, the Eleventh Circuit lacked jurisdiction to review the original decision of the BRB. Finally, as the motion for reconsideration was based on the same arguments as in the record considered for the initial decision (and raised no new arguments), Chief Judge Prior held that the denial of the motion for reconsideration was not reviewable. Therefore, the appellate court dismissed the petition for lack of jurisdiction.
From the federal district courts
Opinion Legendre, Wayne, Avondale
Terry Legendre claimed that he contracted mesothelioma caused by his exposure to asbestos during his three months of employment for Avondale Shipyards and from exposure to asbestos on the clothing of others who worked at Avondale. He brought this suit in state court in Orleans Parish, Louisiana against Avondale and suppliers of products allegedly containing asbestos, and Avondale’s successor, Huntington Ingalls removed the case to federal court based on the Federal Officer Removal Statute. Terry Legendre’s wife, Eleanor Roux Legendre, was substituted as plaintiff in the case after Terry passed away. She filed two motions for summary judgment, and Judge Fallon granted the motion that Legendre died from mesothelioma caused by exposure to asbestos, although Judge Fallon cautioned that defendants could argue that there was a lack of specific causation from the exposure caused by a particular defendant. Eleanor also moved to prohibit Avondale from utilizing the government contractor defenses from Boyle and Yearsley with respect to the failure to warn of health hazards of asbestos and failure to implement safety measures that would have prevented the uncontrolled spread of asbestos dust that caused Terry’s exposure. Avondale argued that Eleanor made claims of general negligence and strict liability in addition to the claims for failure to warn and failure to enact safety measures, and Judge Fallon agreed to grant summary judgment only for the claims of failure to warn and failure to enact safety measures, and Avondale could use the government contractor defenses for the other claims. Judge Fallon next addressed the motion for summary judgment filed by the insurer for Wayne Manufacturing in connection with the claim brought by Avondale against Wayne as a professional vendor of asbestos-containing wallboards. The insurer argued that Wayne could not be sued as a professional vendor because it simply glued non-asbestos containing wallboard material to a Marinite core for Avondale’s joiner subcontractor, Hopeman Brothers, which furnished the finished wallboards to Avondale, and Judge Fallon granted summary judgment on the issue of whether Wayne was strictly liable as a commercial supplier. Judge Fallon then addressed Avondale’s motion to dismiss the intentional tort claims against it. Judge Fallon noted that Eleanor would have to show that Avondale knew that Terry’s mesothelioma was substantially certain to follow from Avondale’s conduct, and he concluded that the evidence failed to establish that Terry’s mesothelioma was inevitable, even if Avondale was aware that the workplace exposure was dangerous. Similarly, he dismissed the fraud claims as there was no evidence of fraudulent intent. Like Wayne Manufacturing, Hopeman Brothers moved for summary judgment that it was not a manufacturer or professional vendor of asbestos-containing products. Judge Fallon agreed that the providing of joiner service for Avondale (pasting together wallboard using non-asbestos glue) did not make Hopeman a manufacturer and that partial summary judgment should be granted. However, Judge Fallon found questions as to whether Hopeman Brothers was a professional vendor because it agreed to supply the wallboard, it purchased the components and assembled them, it held the wallboard out as its own, and it operated with a scale necessary to be considered a professional vendor. Finally, Judge Fallon declined the request for a stay from SPARTA Insurance Co., successor to American Employers’ Insurance Co., which issued policies to Avondale executives. SPARTA argued that it was a party to previously filed litigation in federal court in Massachusetts involving its liability for the policies issued to Avondale for its executives. Distinguishing the decision of Judge Vitter to grant a stay for Pennsylvania Insurance Co. in the Giarratano decision (discussed in the May 2023 Update), Judge Fallon declined to grant the stay.
Ashton Rutherford brought suit in federal court in Louisiana, claiming that he was injured while working as a loader operator and oiler on a hopper barge owned and controlled by Pontchartrain Materials and operated by Captain Norwood Favre. Pontchartrain Materials filed a motion for summary judgment that Rutherford was not a seaman, and Favre filed a motion for summary judgment based on the fellow servant doctrine, seeking dismissal with prejudice. After reviewing Favre’s motion, Rutherford agreed that Favre should be dismissed, but he asked the court to dismiss Favre without prejudice so as not to “in any way prejudice his rights against his Jones Act employer, Pontchartrain Materials Corporation” (as that would be an “adjudication on the merits”). Judge Ashe noted that Rutherford had not explained how his rights might be prejudiced, and he answered that the dismissal with prejudice was “warranted because Favre filed an answer and a meritorious motion for summary judgment before Rutherford sought voluntary dismissal of his claim against Favre.” Therefore, Judge Ashe dismissed the claim against Favre with prejudice.
Judge Ashe then considered the motion for summary judgment that Pontchartrain filed, asserting that Rutherford was not a seaman. Pontchartrain, which supplies aggregate construction materials (crushed stone, limestone, concrete, sand, and gravel), operates four yards in southeast Louisiana where its marine department unloads the aggregate from third-party-owned hopper barges. Pontchartrain uses three spud barges (LEVIATHAN, BEHEMOTH, AND POULEDEAU) to assist in the operation. The Pontchartrain barge is spudded down or tied to shore and connected to land during the unloading. The third-party hopper barge is placed alongside the Pontchartrain spud barge, and Pontchartrain employees use an excavator or front-end loader to unload the aggregate and place it in a dump truck or pile on the land. Rutherford worked on the third-party barges, signaling the crane operator or using a front-end loader to move the aggregate. When the unloading was complete, the Pontchartrain spud barge was moved by a tug (owned by a third party) to its next work locations. Pontchartrain employees do not usually ride on the spud barge between locations but have on occasion ridden on a spud barge for a short distance. He boarded the spud barges either by ladder or by tow boat. Pontchartrain’s shoreside operations manager assigned Rutherford to his work location each day, and Rutherford drove to that yard. He primarily worked on the BEHEMOTH at various yards, and he did some maintenance on the spud barges, such as fueling and greasing the excavators, cranes, and front-end loaders. Rutherford was responsible for spudding down and cleaning the spud barges and tying up the third-party hopper barges to the spud barges. Rutherford estimated that he spent 80 to 90 percent of his time working on the water. Rutherford’s injury occurred while the BEHEMOTH was in drydock, and he was assisting Favre in unloading limestone from a material barge. Favre operated the excavator from shore, and Rutherford spotted Favre from the material barge (using hand signals to indicate where Favre should place the excavator bucket). During a swing of the bucket on the excavator, Favre hit Rutherford with the bucket, causing him to fall into the canal. Pontchartrain claimed that Rutherford’s exclusive remedy was pursuant to the LHWCA because he was a longshore worker, unloading third-party material barges. Rutherford claimed that he contributed to the mission of the spud barges, to unload third-party barges, and his work was performed on the spud barges, taking orders from the spud barge captain. Judge Ashe recited the test for seaman status and noted the enumeration of the requirements for the element that the worker have a connection to the vessel that is substantial in nature from the Fifth Circuit’s en banc decision in Sanchez. Judge Ashe considered the nature element four times in the context of a longshoreman who worked on the Mississippi River (before and after the Sanchez opinion) in Meaux v. Cooper (see June 2022 Update). He recognized that the Fifth Circuit had replaced a single test of exposure to the perils of the sea with the addition of inquiries on the allegiance of the worker, the performance of seagoing activity, and evaluation whether the worker performs discrete tasks or sails with the vessel from port to port or location to location. Meaux rode a crew boat to work in the Mississippi River, but Judge Ashe held he was not a seaman, reasoning: “Boarding a crew boat to get to work is not seagoing activity; nor is performing longshore work near or around water.” Like Meaux, Judge Ashe held that Rutherford was not a seaman “because he did not engage in sea-based or seagoing activity and did not sail with Pontchartrain vessels.” The vessels were almost always only a gangplank from shore, and he never worked on vessels in motion. Accordingly, Judge Ashe dismissed the claims for Jones Act negligence, unseaworthiness, maintenance and cure, and punitive damages, leaving him with his claims under the LHWCA.
Paul Hotard was allegedly exposed to asbestos while working at Avondale’s shipyard from 1969 to 1970 as a tack welder. Before he died from mesothelioma, he brought this suit against Avondale and several asbestos suppliers in state court in Orleans Parish, Louisiana. Avondale removed the case to federal court based on diversity, and Hotard’s widow substituted for Hotard after he died. In 2022, Chief Judge Brown granted the motion for summary judgment filed by/joined by Avondale and its insurers, arguing that the state-law claims against Avondale were barred by the post-1972 LHWCA, which provided the exclusive remedy against Avondale (and its insurers). After Chief Judge Brown recused herself and the Fifth Circuit issued its decision in Barrosse (see July 2023 Update), holding that the shipyard worker’s claims under Louisiana state law were not preempted by the LHWCA because his injury occurred prior to Louisiana’s 1975 workers’ compensation statute, some of the defendants (SeaRiver Maritime and Exxon Mobil) moved for leave to bring cross-claims and third-party claims against Avondale, Hopeman Brothers, and Liberty Mutual (insurer of Hopeman Brothers) that were denied before Barrosse. Citing the change in law, Judge Fallon granted reconsideration and permitted the filing of the claims. See November 2023 Update.
Hopeman Brothers and its insurer, Liberty Mutual, then moved for reconsideration of the order granting leave to SeaRiver to file a third-party demand against Hopeman/Liberty Mutual or, alternatively, to dismiss the claims. Hopeman Brothers argued that the claim was untimely and that the claim was barred because Hopeman Brothers had settled with the plaintiffs. Judge Fallon previously considered the timeliness of the motion when he granted leave, so he declined to reconsider that decision. Turning to the merits, SeaRiver cited the indemnity provision in a purchase order between Avondale and Hopeman Brothers and argued that Hopeman Brothers was bound to indemnify SeaRiver. Judge Fallon reasoned that, at the stage of a motion to dismiss, SeaRiver had stated a plausible case for contractual indemnity and that the settlement of the tort claims would have no bearing on the contractual claims. Therefore, Judge Fallon declined to dismiss the third-party claim against Hopeman Brothers and Liberty Mutual. See January 2024 Update.
Judge Fallon then addressed the indemnity claims that SeaRiver brought against Avondale and Hopeman Brothers. The SeaRiver claim against Avondale was based a contract that was entered into by SeaRiver’s predecessor, Humble Oil & Refining (building tankers at Avondale’s shipyard). The SeaRiver claim against Hopeman Brothers was based on a contract between Avondale and Hopeman Brothers by which Hopeman Brothers completed joiner work for the tankers (that contract contained pass-through indemnity from Hopeman Brothers to SeaRiver). Judge Fallon ruled that the indemnity provisions of the contracts were silent whether the indemnity extended to SeaRiver’s own negligence, and he held that the language was insufficient to satisfy the clear and unequivocal rule under Louisiana law. SeaRiver argued that it was entitled to indemnity for vicarious liability it may have for the acts of Avondale and Hopeman Brothers; however, Judge Fallon rejected that argument because any vicarious liability for which SeaRiver may be responsible was due to the consequences of its own actions and not those of Hopeman Brothers or Avondale. The situation was different with respect to the argument that SeaRiver was entitled to indemnity from Avondale and Hopeman Brothers for the strict liability claims against SeaRiver. However, that claim was premature because SeaRiver did not establish that its settlement was reasonable. See May 2024 Update.
The indemnity claims extended beyond the defendants in the suit. Hotard entered into settlements with Hopeman Brothers and Avondale, and Hopeman Brothers and Avondale sought indemnity from Hotard with respect to the third-party claims brought against them by SeaRiver. Hotard’s settlements with Hopeman Brothers and Avondale contained an agreement to release the defendants and to indemnify and hold them harmless (up to the amount of the settlement) from claims arising out or connected to Paul Hotard’s disease and death. However, Hotard argued that the indemnity did not extend to obligations asserted against Hopeman Brothers and Avondale by SeaRiver. In order to determine whether the indemnity provisions extended to the indemnity claims of Avondale and Hopeman Brothers, Judge Fallon began by identifying the claims asserted by Hotard against Avondale and Hopeman Brothers–negligence and strict liability derivative of its ownership of the vessels on which asbestos-containing products had been installed. Judge Fallon noted that he had previously determined that SeaRiver was not entitled to defense and indemnity from Avondale and Hopeman Brothers for Hotard’s negligence claim. Thus, the only basis for defense/indemnity was with respect to the strict liability claim, and SeaRiver would have to show potential liability to Hotard. That showing would require that SeaRiver establish that Hotard’s claims were not frivolous, its settlement with Hotard was reasonable and not tainted by fraud or collusion, and that it was under a reasonable apprehension of liability. If that showing was made, then Judge Fallon would address the issue whether Hotard’s indemnity obligation extended to SeaRiver’s claims against Avondale and Hopeman Brothers. Consequently, at this stage, Judge Fallon held that the claims of Avondale and Hopeman Brothers against Hotard “survive this stage of litigation” (and that there was also a legitimate case or controversy with respect to the declaratory judgment claim brought by Hopeman Brothers against Hotard for defense/indemnity).
And on the maritime front . . .
From the federal appellate courts
Brooks Fitch is a New York entity that imported apparel from foreign manufacturers for sale to mass retailers in the United States. It brought large quantities of apparel from Chinese Manufacturers and hired International Transport Management Corp. to act as its freight forwarder to coordinate the shipment of the apparel. International Transport contracted Ocean Navigator Express Line, a non-vessel operating common carrier, and Ocean Navigator Express contracted with various shipping lines for the transportation. Cargo Services Far East/Cargo Services China issued bills of lading to the Chinese manufacturers as agent for Ocean Navigator Express. Instead of transferring the bill of lading after payment, however, International Transport Management agreed with Brooks Fitch to release the bill of lading before payment based on an indemnity agreement from Brooks Fitch with collateral checks. Brooks Fitch failed to pay the manufacturers, and the collateral checks bounced. Ultimately Cargo Services Far East/Cargo Services China paid the manufacturers $4,155,006.50 in settlements. Ocean Navigator Express and International Transport Management brought this suit in federal court in New Jersey against Brooks Fitch, asserting claims for fraud, conversion, breach of contract, embezzlement, replevin, imposition of a constructive trust, exoneration, attachment, and indemnity. District Judge Salas held a bench trial to determine the liability of Brooks Fitch, and the district court held Brooks Fitch liable to Ocean Navigator Express for the amount of the settlements. Brooks Fitch is no longer in business, and Judge Salas pierced the corporate veil of Brooks Fitch to impose liability against its principal, Joseph Safdieh. Brooks Fitch and Safdieh appealed to the Third Circuit and argued that Ocean Navigator Express was not a real party in interest because it was Cargo Services Far East/Cargo Services China that paid the manufacturers. Writing for the Third Circuit, Judge Fuentes disagreed. He reasoned that both Ocean Navigator Express and Cargo Services were inextricably involved in the transactions with the manufacturers. The bills of lading were issued by Cargo Services as agent for Ocean Navigator Express, listing Ocean Navigator Express as the carrier. Thus, Ocean Navigator Express was exposed to liability for the failure to pay the manufacturers. And Ocean Navigator Express was a beneficiary of the indemnity provided by Brooks Fitch in which there was a “clear and unmistakable intent” to indemnify Ocean Navigator Express. Noting that Ocean Navigator Express and Cargo Services China are both wholly owned subsidiaries of Cargo Services Far East, Judge Fuentes held that Ocean Navigator Express could bring the suit even though it was related companies that paid the settlements, and he affirmed the judgment of the district court.
Marilyn Patton tripped on a metal threshold that was not flush with the floor on Deck 9 of the cruise ship M/S VICTORY. She brought suit against the cruise line in federal court in Florida, and the cruise line moved to dismiss the complaint for failure to plead sufficiently that the cruise line had actual or constructive notice of any danger from the threshold. Patton presented a photograph of the threshold and argued that it was apparent that the gap did not develop overnight. The problem was that the photograph was undated and did not establish the condition of the threshold at the time of the accident or how long the depicted condition had existed. Patton’s argument that common sense dictated that employees of the cruise line would have seen the hazard as they routinely clean the floors fared no better as she did not allege how or why the staff that cleaned the area would recognize the potential danger of the threshold. Finally, Patton cited two safety reports/minutes (from an unidentified ship and from a different vessel) that gave a general warning about thresholds and a specific warning about a particular threshold that lacked carpet and visible signage. Judge Scola rejected the argument that the different incident or general references to dangers of thresholds in safety minutes were sufficient to provide notice with respect to the condition of the threshold on the VICTORY. Consequently, he dismissed the case without prejudice. See September 2022 Update.
Patton amended her complaint to add three “new” factual allegations, but Judge Scola held that the new allegations were insufficient to state a claim and dismissed the amended complaint. The first addition was that a new, undated, photograph that Patton alleged was taken at or shortly after the time of the fall established that the gap had developed over time so that the crew would have had notice of the gap. Judge Scola answered that Patton did not even attempt to argue that the photograph represented the state of the threshold before the time of the accident, let alone its condition for a sufficient time to give notice to the crew. Second, Patton argued that the crew members routinely clean the floors in the area, so a reasonable inference from common sense dictates that the crew would have seen the tripping hazard. As Judge Scola had previously rejected this argument, he simply noted that Patton had not added anything to buttress the argument. Third, Patton attached the same safety minutes to the amended complaint as she had previously submitted. As Judge Scola had previously held that these documents were too generalized to establish notice for the specific hazard in this case, he held they were insufficient and dismissed Patton’s amended complaint. See November 2022 Update.
Patton appealed to the Eleventh Circuit, which applied maritime law to the accident even though the ship was docked in Key West when Patton was injured. With respect to notice, the appellate court agreed that the pleading was insufficient for the same reason that the court gave in its Holland case, the complaint failed to allege facts (only conclusory allegations) that the dangerous condition existed for a sufficient time before Patton’s fall to impute notice to the cruise line. Like Judge Scola, the appellate court rejected the argument that the court could draw the reasonable inference that the condition was due to wear and tear over time. The court did not consider it to be self-evident that the gap beneath the threshold (that was apparent in the picture after the accident) had emerged gradually over the course of time due to wear and tear. Turning to Patton’s argument that the evidence was wholly under the control of the cruise line and all she could reasonably know was based on observations made after the accident, the court answered that “Ms. Patton misunderstands her pleading burden.” The court explained that she did not have to know that Carnival had constructive knowledge of the dangerous condition. Rather, she had to allege plausible facts that the cruise line had constructive notice of the dangerous condition. “So long as she had a good-faith basis, she could’ve made these allegations even though she did not have access yet to evidence supporting them.” As the pleading did not allege plausible facts that the cruise line had constructive notice of the raised threshold, the Eleventh Circuit affirmed the dismissal of the complaint.
Ronald Kent was employed as a seaman on the M/V FRANK HOLLOMAN, which was owned/operated by Southern Towing. He and the vessel’s mate were moving a trash pump from an adjacent barge to the deck of the vessel when the pump slipped from the mate’s grasp, causing the weight of the pump to transfer to Kent, resulting in an injury to Kent’s back. Kent brought this suit in federal court in Louisiana against Southern Towing, alleging negligence and unseaworthiness for directing the movement of the pump with insufficient manpower assistance. Southern Towing moved for summary judgment, arguing that the task being performed was a two-person task that could have been safely performed by Kent and the mate. Therefore, there was no insufficiency in the manpower. In response, Kent revised his theory of liability, asserting that the pump did not slip from the mate’s hands as it was being moved. Instead, the pump was placed on the handrail of the vessel’s catwalk as the pump was being transferred from the barge. The mate intentionally let go of the pump to reposition himself, and the pump’s weight shifted to the plaintiff during the mate’s repositioning. Kent now argued that the mate’s decision to release the pump was negligent. He claimed that the mate had sought the assistance of the vessel’s engineer before they began the job of moving the pump, but the engineer was unavailable. Although the allegations had changed, Judge Guidry held that summary judgment was appropriate under either theory. As to the insufficient manpower theory, Judge Guidry noted that both Kent and the mate had testified that two workers could safely move the pump. As to the negligence of the mate in resting the pump on the handrail, Judge Guidry noted that the mate had testified that he informed Kent of his intent to rest the pump on the rail prior to releasing the pump from his grasp. As there was no evidence that one worker was incapable of steadying the pump as it rested on the handrail and there was no evidence that the mate caused the pump to shift when he took his hands off the pump, Judge Guidry found that the shifting of the weight of the pump was “an unfortunate circumstance” and was not the result of negligence of the mate. As there was no evidence of insufficient manpower or any defect in the gear or appurtenances of the vessel, Judge Guidry also concluded that there was no basis for unseaworthiness. Therefore, he dismissed the negligence and unseaworthiness claims. See September 2023 Update.
Kent appealed to the Fifth Circuit, arguing that two men were sufficient to move the pump, but that two men were insufficient to perform the specific task of placing the pump on the handrail for repositioning. The Fifth Circuit disagreed that the claim “should be analyzed at such a granular level,” and further disagreed that the evidence established that Kent had established that two men were insufficient to perform the task of resting the pump on the handrail or that the mate caused the pump to shift when he removed his hands. Consequently, the Fifth Circuit affirmed the denial of the negligence and unseaworthiness claims.
Kholkar Vishveshwar Ganpat, a resident of India, signed a Seafarer’s Mumbai Employment Agreement in India with an Indian subsidiary of Eastern Pacific Singapore that provided for benefits in the event of his disability. Ganpat claimed that he contracted malaria while serving as a crewmember of the M/V STARGATE on a voyage from Gabon to Brazil and brought this suit in federal court in Louisiana against Eastern Pacific under the Jones Act and general maritime law. The thrust of the suit was that the crew failed to stock up on anti-malaria medicine when the vessel stopped at Savannah before heading to Africa. The suit included a claim for benefits under the employment agreement that provided for the application of Liberian 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 serve Eastern Pacific properly. 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. See September 2021 Update.
After service was accomplished, Judge Morgan addressed Eastern Pacific’s argument that the case should be dismissed on the basis of forum non conveniens because Ganpat is a resident and citizen of the Republic of India, Eastern Pacific is a Singapore company with its principal place of business in Singapore, Ganpat experienced symptoms of malaria while the vessel was on the high seas sailing from Gabon to Brazil, he was hospitalized and treated for malaria in Brazil, and he was repatriated to India where complications arose. Judge Morgan assumed there was an adequate alternative forum available in India, but she held that Eastern Pacific did not meet its burden of proof with respect to the private interest factors or the public interest factors. Judge Morgan noted, with respect to the private interest factors, that the witnesses were spread across the world. Although many of the crew reside in India, there were others in Romania, Ukraine, Bulgaria, the Philippines, Russia, and Turkey. There were medical witnesses from Brazil and India as well as witnesses with respect to the provisioning of the ship in Savannah before it sailed to Africa. There were also possible witnesses from Liberia, where the owner of the vessel and employer of Ganpat were located. Similarly, with respect to the public interest factors, Judge Morgan found no clear “home” for the dispute involving multiple international contacts. Factoring into the analysis the dilatoriness of Eastern Pacific’s filing of the motion (the longer the case was pending in the United States, the less the defendant could claim inconvenience in the United States), Judge Morgan could not conclude that Eastern Pacific had met the heavy burden of demonstrating that the public and private interest factors weighed in favor of dismissal, and she denied the motion to dismiss. The facts were not developed sufficiently for Judge Morgan to decide whether Indian law applied in the context of Eastern Pacific’s motion to dismiss the suit for failure to state a claim under Indian law (there were disputes about which entities owned and employed Ganpat). Accordingly, Judge Morgan held that a determination of the applicable law was premature. See February 2022 Update.
While Ganpat was trying to serve Eastern Pacific, Eastern Pacific and its Indian subsidiary filed suit against Ganpat in South Goa, India (March 2, 2020), seeking an injunction restraining vexatious and oppressive foreign legal proceedings, i.e., the suit in federal court in Louisiana. On March 7, 2020, the court in South Goa, India issued an order temporarily restraining Ganpat from prosecuting the action in the United States, concluding that the parties and the ends of justice would be better served if trial on liability and damages in relation to the Mumbai Employment Agreement were in India. Almost a year and a half after being restrained from pursuing his suit in Louisiana, Ganpat filed a motion in the Louisiana proceeding seeking to enjoin the Indian litigation that had restrained the prosecution of the American litigation. Noting that Eastern Pacific’s counsel had withdrawn its objections to personal jurisdiction in a telephone status conference on April 18, 2019 (although the complaint was not properly served until later), Judge Morgan held that the court in Louisiana had jurisdiction over the defendant and that its suit in India constituted vexatious and oppressive litigation. She also held that the need to prevent the litigation in India and to protect the jurisdiction of the American court outweighed the need to defer to principles of international comity. Consequently, she enjoined Eastern Pacific from litigating the Indian suit, ordered it to dismiss the Indian suit, and extended the injunction to its Indian subsidiary as it was acting in “active concert” with Eastern Pacific. Eastern Pacific filed a notice of appeal the next day. See May 2022 Update.
Judge Morgan then addressed the choice of law applicable to the claims brought by Ganpat based on the eight factors enunciated by the Supreme Court in Lauritzen and Rhoditis. As the illness arose at sea, Judge Morgan concluded that the factor for the place of the wrongful act did not weigh in favor of applying the laws of the United States, India, Singapore, Gabon, or Liberia. Although the factor for the law of the flag (Liberia) is ordinarily “accorded great significance,” Judge Morgan dismissed it as having no specific application as the vessel owner was not a party. Judge Morgan also gave little significance to the factor for the allegiance or domicile of the injured worker (India) because Ganpat’s work took him beyond the territorial boundaries of his domicile. With respect to the allegiance of the shipowner, who was not a party, Judge Morgan took into consideration the defendant’s organization in Singapore. The place where the contract was executed was Mumbai, India, by Ganpat and an Indian company acting on behalf of a Liberian company. The agreement provided that it would be interpreted in accordance with the laws of the state of the flag of the ship on which Ganpat was employed (Liberia). As the employer was not a defendant, Judge Morgan held that the place of the contract was of no particular application, even though Ganpat brought a claim for benefits under the agreement. Judge Morgan previously assumed that India was an accessible forum (for the factor on the inaccessibility of the foreign forum), but she held that this factor was only applicable for the forum non conveniens issue and not with respect to the determination of applicable law. As the suit was brought in the United States, Judge Morgan found that the factor of the law of the forum favored application of American law. Finally, Judge Morgan held that the shipowner’s base of operations was not a factor because the shipowner was not a defendant. In summary, Judge Morgan found three relevant factors, the Indian allegiance of the seaman, the Singapore allegiance of the defendant, and the United States forum for the litigation. Reasoning that the Lauritzen/Rhoditis factors are not exclusive, Judge Morgan considered Ganpat’s allegation that the vessel was not properly provisioned when it left Savannah and that vessels managed by the defendant made hundreds of visits to ports in the United States and held that United States law should apply to the claims brought under the Jones Act and general maritime law. Judge Morgan then addressed the applicable law for the claim for contractual benefits. The Seafarer Employment Agreement incorporated a Collective Bargaining Agreement between Eastern Pacific and the International Transport Workers Federation. Judge Morgan considered the CBA to be a maritime contract and noted that it did not contain a provision for choice of law. Therefore, she held that her previous Lauritzen/Rhoditis analysis applied so that United States law applied to the claim for benefits under the contract that was entered into by the Indian seaman in India. In an amended complaint, Ganpat added a claim for malicious prosecution against Eastern Pacific arising out of the lawsuit it filed against Ganpat in India. As that alleged tort took place in India and not on navigable waters, Judge Morgan held that Indian law applied to this claim. After concluding her decision on the applicable law, Judge Morgan ruled that the decision involved a controlling question of law that would materially affect the outcome of the case. Therefore, she certified her order for interlocutory appeal pursuant to Section 1292(b) and stayed the case pending resolution of the appeal. See December 2022 Update.
Judge Morgan’s order, enjoining Eastern Pacific from litigating the Indian suit, discussed in the May 2022 Update, was upheld by a majority of a panel of the Fifth Circuit, concluding that Judge Morgan was within her discretion in concluding that the vexatiousness of the Indian litigation outweighed concerns for comity. Writing for the majority, Judge Ho found that the time Ganpat spent in jail for violating the Indian injunction (and the possibility of being sent back to jail) and the threat of seizure of his property were sufficient to satisfy the hardship factor considered for an injunction against foreign litigation as vexatious. Judge Ho also found the second factor (the foreign suit’s ability to frustrate and delay the speedy and efficient determination of the cause) was satisfied because the Indian court sought to prevent Ganpat from proceeding with his first-filed suit in the United States. As the Indian litigation imposed “a hardship on Ganpat while frustrating the American litigation,” Judge Ho did not have to consider the third vexatiousness factor (“the extent to which the foreign suit is duplicative of the litigation in the United States”), but he agreed with Judge Morgan that the suit was duplicative. Judge Ho also agreed with Judge Morgan that comity concerns were minimal, reasoning that no public international issue was implicated in this case and adding that the case had been ensconced in the American judicial system because Eastern Pacific had consented to American jurisdiction and appeared in the case. Finally, Judge Ho disagreed with the dissenting opinion that international anti-suit injunction precedents in the Fifth Circuit require a showing of irreparable injury. Judge Jones dissented, relating the “tortured procedural history” of the litigation, which she described as an attempt by Ganpat “to compel domestic jurisdiction over a suit with highly tenuous domestic connections.” She reviewed the appellate decisions considering anti-suit injunctions and found this case to be similar to those in which the appellate court vacated anti-suit injunctions. As all of the parties are foreign, the only connections to the United States were the location of Ganpat’s attorney and the allegation that the foreign ship manager failed to supply the vessel with enough anti-malaria medication while the vessel was briefly in port in Savannah. Judge Jones also criticized the limited discussion about the dissimilarity of the parties in the Indian and American cases, emphasizing that the duplicative factor related to vexatiousness is about legal, not factual, similarity. And, with respect to comity, Judge Jones found the majority’s emphasis on public international relations to be “well outside the norm,” noting that it was two years after the Indian injunction that Judge Morgan issued the injunction in the American litigation that is the subject of this appeal. She added: “Had Ganpat instead litigated on the merits in the Indian court, this case might have been concluded already.” Judge Jones concluded that there were legal and factual errors underpinning the injunction, that it was an abuse of discretion to bind the Indian company that was not a party to the action in the United States, and that the terms of the injunction were not narrowly tailored and were abusive. See June 2023 Update.
After the affirmance by the Fifth Circuit of the injunction against litigation in India and while the parties await the decision of another panel of the Fifth Circuit on the choice of law, Judge Morgan considered Ganpat’s motion for contempt and request for attorney fees based on Ganpat’s representation that there had been numerous hearings set in the Indian action. Judge Morgan reasoned that the defendant apparently believed that the court order “does not apply to its attempts to have the Indian court rule that the dismissal of the Indian Action was without prejudice.” Judge Morgan held a hearing and counsel for Eastern Pacific represented that it would not proceed with any lawsuit against Ganpat in India. Judge Morgan reiterated that Eastern Pacific was enjoined from proceeding in the Indian Action and warned that any further violation of the court’s order would “result in the Defendant being ruled into this Court to show why it should not be held in contempt and subjected to sanctions, including attorneys’ fees.” See March 2024 Update.
The Fifth Circuit issued its decision on choice of law on May 1, 2024. Writing for the Fifth Circuit, Judge Engelhardt analyzed the Lauritzen–Rhoditis factors in the context of traditional maritime shipping activities. He recognized that the place of the wrongful act was generally of minimal importance for a shipboard tort, but the law of the flag was generally of cardinal importance (having its roots in “pragmatism, stability, predictability, and international comity.” He added that the allegiance of the shipowner and the shipowner’s base of operations were also important and that the domicile of the injured person bears consideration as each nation has a legitimate interest in its nationals. With respect to the other factors, Judge Engelhardt reasoned that the place of the contract is generally not of substantial influence in the choice of law with respect to tort claims, that the law of the forum is given little weight, and that accessibility of a foreign forum is relevant to the forum-non-conveniens analysis and not to the determination of applicable law. Accordingly, the only factor favoring the United States was the law of the forum, which is given little weight. Judge Engelhardt held that Judge Morgan erred in concluding that the law of the flag and the base of operations factors lacked significance in cases where the shipowner is not a defendant. He also disagreed with Judge Morgan’s attribution of predominate significance to the acts in Savannah that resulted in the injury contracted in Africa, resulting in illness to Ganpat while the ship sailed the high seas of the Atlantic Ocean. Unlike the situation of localized activities in foreign countries during oil and gas exploration and development, minimal significance is given to the location of a seafaring ship at a given point its travels (the base of operations is a more important contact). Therefore, Judge Engelhardt concluded that United States law did not govern, and he proceeded to determine the applicable law. Eastern Pacific argued that Liberian law should apply as designated in his employment agreement. Judge Engelhardt agreed to the application of Liberian law to claims for disability benefits in accordance with the contract. As to the tort claims, in which the law of the flag is a cardinal rule unless it is outweighed by other factors, Eastern Pacific did not allege that the law of Singapore or India would conflict with Liberian law. Thus, rather than remanding the case to decide which law to apply, Judge Engelhardt ruled that the law of the flag should apply, and Judge Engelhardt held that Liberian law would apply to the contract claims and the tort claims, with the sole exception being the application of Indian law to the intentional tort claim concerning Eastern Pacific’s suit in India.
Mark Kane was hired from the union hall in Hawaii and flew to Los Angeles where he signed shipping articles to work for Matson Navigation on the KAIMANA HILA for 105 days from September 13, 2021, to December 26, 2021 (including the return to Long Beach, California). On December 6, 2021, the captain of the vessel issued a letter warning Kane that he had violated workplace policy and then read the letter to Kane in front of four shipmates. According to Kane, the captain confined Kane to his quarters and discharged him the next day in Guam without giving him the opportunity to address the deficiencies in the warning letter. Kane contended that the letter came in retaliation for his reporting that another seaman harassed and bullied him, and Kane brought this suit in federal court in California seeking to recover under the California Fair Employment and Housing Act, for breach of contract, breach of the implied covenant of good faith and fair dealing (based on the letter of warning), for unearned wages, for intentional infliction of emotional distress, and for defamation. Matson Navigation moved to dismiss all the claims except for the allegations of intentional infliction of emotional distress and defamation. As none of the claims that are the basis for the suit occurred in California, Judge Orrick held that the claim under the California Fair Employment and Housing Act (which did not have extra-territorial effect) would be dismissed. He dismissed the claim for breach of contract/bad faith as the letter of warning was not a contract under maritime or state law and did not contain any bargained-for promise by either Matson or Kane. Although Matson argued that the claim for wages under 46 U.S.C. § 10318 (a month’s wages unless he was fired for neglect of duty, incompetency, or injury) was subject to the exclusive remedy of Section 10313(c) (seaman fired before a month’s wages have been earned), Judge Orrick did not believe that the latter provision provided the exclusive remedy for a claim under Section 10318. He also rejected Matson’s argument that the Labor Management Relations Act displaced the remedy asserted under the Seamen’s Wage Act. Therefore, he declined to dismiss the wage claim (noting that additional argument or discovery might prove the claim to be futile). See May 2023 Update.
Kane filed an interlocutory admiralty appeal to the Ninth Circuit pursuant to Section 1292(a)(3), and the Ninth Circuit agreed that the California statute did not apply extraterritorially in this case, reasoning that the principal place of Kane’s work was on the high seas. The appellate court also agreed that the letter of warning was not a contract under either state or maritime law and affirmed the denial of the claims for breach of contract and breach of the implied covenant of good faith and fair dealing.
Arnold L. Pritt and his wife, Ruth A. Pritt, brought this suit in Massachusetts state court, asserting that Arnold was exposed to the defendants’ asbestos products while he worked in shipyards and on ships at sea and in port during his employment by the Navy. The case was removed to federal court, and Ruth continued to prosecute the claim after Arnold died. Ruth sought to amend her complaint, and John Crane objected to her survival claim for pain and suffering and medical bills, her claim for loss of consortium and society in the wrongful death claim, and her claim for punitive damages for the wrongful death claim, arguing that they were not permitted by the Jones Act or the Death on the High Seas Act. Ruth argued that the Jones Act was not applicable because John Crane was not the employer of her husband and that DOHSA did not apply because Arnold’s injuries were indivisible between the high seas and territorial waters. Magistrate Judge Bowler agreed with Ruth on both points, stating that the Jones Act did not apply because the complaint was against a product manufacturer and not Arnold’s employer [contrary to Scarborough v. Clemco Indus., 391 F.3d 660 (5th Cir. 2004)], and that DOHSA did not limit the recoverable damages when the exposure to asbestos occurred on the high seas and in territorial waters. Finding no overlap between statutory and decisional law, Magistrate Judge Bowler held that punitive damages and damages for loss of consortium could be recovered by Ruth under the general maritime law and that there were “no established and inflexible rules that would convince [her] to withhold the remedies sought by plaintiff under the Massachusetts wrongful death statute.” Finally, reasoning that “it makes little sense to recognize plaintiff’s right to wrongful death damages but strip her of the rights that were afforded to her husband prior to his death,” Magistrate Judge Bowler held that a survival remedy was available in this case. See August 2023 Update.
John Crane objected to the recommendation, and Judge Gorton began by addressing whether there was a survival remedy. Citing Batterton, John Crane argued that recognition of the remedy should be left to Congress, but Judge Gorton disagreed, noting that the Jones Act (allowing) and Death on the High Seas Act (not allowing) were not in conformity. Therefore, there was no controlling precedent after Batterton, and Magistrate Judge Bowler’s recommendation was not clearly erroneous or contrary to law. John Crane objected to the recovery for loss of consortium and punitive damages, and Judge Gorton reasoned that Magistrate Judge Bowler’s logic in distinguishing Miles “flouts Batterton’s holding, which directs courts to ‘look primarily to . . . legislative enactments for policy guidance.’” He set aside the ruling on loss of consortium, stating that “permitting plaintiff to seek damages for loss of consortium would undermine uniformity between maritime statutory law and maritime common law and would ignore the Supreme Court’s ruling in Miles.” He set aside the ruling on punitive damages “because Miles forecloses the award of punitive damages in wrongful death claims brought pursuant to general maritime law.” See November 2023 Update.
Ruth moved the district court to certify, for an interlocutory appeal, the decision that she was not entitled to recover punitive damages or loss of consortium under the general maritime law. Judge Gorton declined to do so, stating that a decision on damages would not resolve the litigation and would only partially impact the damages phase of the trial. Therefore, he did not consider the dispute over damages to be a controlling question of law for which certification was proper. See December 2023 Update.
As Judge Gorton declined to certify the order on damages for an interlocutory appeal, Ruth filed the appeal under 28 U.S.C. Section 1292(a)(3), for decisions “determining the rights and liabilities of the parties to admiralty cases.” The appellate court recognized that the case was governed by admiralty law, and the jurisdiction for the federal court could be based on admiralty or an alternative ground. The First Circuit noted that Rule 9(h) sets forth the procedure by which the plaintiff indicates the choice whether to proceed in admiralty, under which an interlocutory appeal is permitted pursuant to Section 1292(a)(3). The court reasoned that the plaintiff does not have to expressly invoke Rule 9(h) in order to designate the case as an admiralty case; however, the plaintiff does have to make an identifying statement reflecting the designation. This case was removed under the Federal Officer Removal Statute, and Ruth filed an amended complaint that did not mention Rule 9(h) and that demanded a jury trial. The amended complaint did contain references that the court had diversity jurisdiction and that the case “also implicates the general maritime jurisdiction of the United States under 28 U.S.C. § 1333(1) and 46 U.S.C. § 30101 and, therefore the general maritime law of the United States applies in this case.” However, the First Circuit did not consider that language to be sufficient to elect admiralty jurisdiction. Accordingly, the First Circuit dismissed the appeal for lack of jurisdiction.
Shanon Roy Santee was employed by Oceaneering International as a remote operated vehicle technician. He was injured on the drillship, M/V DEEPWATER CONQUEROR, which was performing drilling operations on the outer Continental Shelf off the Louisiana coast. Santee brought this suit in state court in Houston, Texas against his employer Oceaneering, drilling contractor Transocean, and well operator Chevron, asserting claims under the Jones Act and general maritime law. Chevron removed the case to federal court based on federal question jurisdiction under the Outer Continental Shelf Lands Act (arguing that the Jones Act claim was improperly pleaded and did not prevent removal), and Santee moved to remand the case to state court, presenting Judge Hittner with two questions. The first question was whether Santee sufficiently pleaded a Jones Act claim against Oceaneering so as to invoke the bar to removal of Jones Act/FELA cases in Section 1445(a). Judge Hittner held that that Santee’s work as an ROV technician contributed to the function of the vessel and that the 763 days he spent aboard the DEEPWATER CONQUEROR pursuant to Oceaneering’s contract with Chevron (96% of his work time for Oceaneering over the last five years) satisfied the duration element of the connection test for seaman status. Judge Hittner then analyzed the factors set forth by the Fifth Circuit in the Sanchez case with respect to the nature element of the connection test, and he held that Santee’s allegiance was to Oceaneering, a shoreside employer, and not to the DEEPWATER CONQUEROR; that Santee was a transitory worker who performed discrete services on the vessel pursuant to a contract and was not permanently assigned to the vessel; but that Santee’s work was sea-based. Reasoning that the sea-based nature of Santee’s work was insufficient by itself to satisfy the nature element of the connection test, Judge Hittner held that Santee was not a seaman and the bar to removal of Jones Act cases was not applicable. Judge Hittner then considered whether there was jurisdiction under the OCSLA, and, as the drillship was attached to the OCS and was involved in exploration and development of oil and gas resources on the OCS, there was federal question jurisdiction under the OCSLA, and the case was removable. See March 2022 Update.
Oceaneering moved for summary judgment (claiming it was immune from tort liability under the LHWCA), and Santee moved for reconsideration of its motion to remand. Judge Hittner stated that, as Santee was injured as a result of oil and gas operations on the OCS, his exclusive remedy was in the LHWCA and that his employer only needed to establish that it had LHWCA insurance at the time of the accident in order to invoke the exclusive remedy provision in the Act. Santee responded with a declaration detailing his job duties to show he was a seaman as well as with the maintenance checks he received from his employer. However, Judge Hittner held that his seaman status was no longer an issue and that, regardless, his evidence did not create a genuine issue of material fact as to whether the exclusive remedy of the LHWCA was applicable. Holding that Oceaneering was immune from tort actions under the LHWCA, including actions under the Jones Act, Judge Hittner granted summary judgment to Oceaneering. See August 2022 Update.
Chevron and Transocean then moved for summary judgment. Chevron argued that Santee was an independent contractor and that Chevron did not exercise sufficient operational control over his work to impose vicarious liability for negligence under the general maritime law. Santee argued that Louisiana law applied and that Chevron retained sufficient operational control to impose vicarious liability on Chevron. Judge Hittner did not have to decide whether maritime law or Louisiana law applied as he concluded that the result was the same under either body of law. Judge Hittner cited the terms of the contract between Chevron and Santee’s employer, Oceaneering, that Oceaneering had complete control over the work performed and that its work was performed as an independent contractor. Despite Santee’s contention to the contrary, Judge Hittner noted that the facts presented did not show that Chevron directed Santee to perform the activity that caused his injury or that Chevron dictated how Santee was to perform that activity. Chevron argued that Santee’s unseaworthiness claim failed because Chevron did not own the vessel, but Santee argued that Chevron had operational control over the vessel that was sufficient to create a fact question for the unseaworthiness claim. Judge Hittner held, however, that Chevron only had a superintendent on the vessel to oversee the drilling operations and did not have a full crew to operate the vessel. Therefore, he denied Santee’s unseaworthiness claim. Judge Hittner analyzed Santee’s claims against Transocean under the Scindia duties for a negligence claim under Section 5(b) of the LHWCA. The turnover duty failed because the equipment Santee was using (and on which he was performing maintenance) was owned by Oceaneering. Santee argued that the area on the vessel where he performed the work was inadequate, making his work more dangerous (not large enough to accommodate his equipment), but Judge Hittner concluded that Santee failed to show that Transocean should have known that the area was not large enough for the work. As to the active control duty, Santee similarly argued that Transocean had control over the deck area and failed to warn Santee or remedy the hazard created by the lack of sufficient space to perform the maintenance on the Oceaneering equipment. However, Judge Hittner found that this argument failed because it was Santee and the other Oceaneering employees who were using the deck to perform their work, and Transocean did not have active control of the equipment or the area where the work was being performed. With respect to the duty to intervene when the vessel owner has actual knowledge of the dangerous condition, Judge Hittner held that Santee was unable to show that Transocean had actual knowledge of the allegedly dangerous condition. Finally, Judge Hittner held that, as the LHWCA applied to Santee’s claims, his unseaworthiness claim was replaced by the negligence remedy under Section 5(b) and failed as a matter of law. See March 2023 Update.
Santee appealed to the Fifth Circuit from the denial of his motion to remand and the summary judgments that were granted in favor of the defendants. He first argued that the defendants waived their argument that the Jones Act claim was improperly pleaded because they failed to mention it in their notice of removal and first raised it in response to Santee’s motion to remand the case on the ground that he pleaded a non-removable Jones Act claim. Writing for the Fifth Circuit, Judge Stewart disagreed. He noted that the defendants had raised federal question (OCSLA) and admiralty jurisdiction in their notice of removal and added that the defendants are not required to anticipatorily rebut all potential arguments that the plaintiff may raise in opposition to the removal. He concluded: “The fact that they did not anticipate the arguments made in Santee’s subsequent motion to remand is not fatal to their arguments on appeal.” Santee next argued that he was a seaman and that his suit was not removable. Judge Hittner found that Santee could not satisfy the nature element of the connection test because he failed two of the three elements—that his allegiance was to a land-based employer, not to the vessel, and because he was assigned as a transitory worker limited to performing discrete tasks (he was free to take other jobs between hitches). Judge Stewart noted that the Fifth Circuit uses a “summary judgment-like procedure” when considering whether a claim has been fraudulently/improperly pleaded in a suit that has been removed to federal court. Santee challenged the conclusion that his allegiance was to a shoreside employer, arguing that for five years he had spent more than 96% of his working hours (763 out of 788 days worked) on the DEEPWATER CONQUEROR. Although he was employed by Oceaneering, he claimed that he reported to the company many for Chevron, “who was in charge of the vessel,” and he was “integrated into the vessel’s crew, including its chain of command.” Santee cited Professor Thomas Galligan’s article and two opinions from district judges in the United States District Court for the Eastern District of Louisiana for the proposition that “his extensive employment history on the vessel establishes a ‘dual allegiance scenario” (that his allegiance was to both Oceaneering and to the vessel). Thus, he argued that he satisfied two out of the three Sanchez factors, unlike Sanchez who only satisfied one of the factors, and he should therefore be considered to be a seaman. The Fifth Circuit disagreed. Judge Stewart answered: “Santee’s attempt to recast himself as an entrenched crewmember of the vessel is not enough to establish allegiance to the vessel. Just as in Sanchez, where a transient employee of a contractor to a vessel spends nearly all of his total employment time with the vessel, that alone is not enough to satisfy the nature prong of the Jones Act seaman inquiry.” Judge Stewart added: “This court’s jurisprudence does not consider duration of service on one vessel as evidence of allegiance to that vessel. Rather, we have considered such evidence as necessary to establish only the duration prong of the seaman status test.” Judge Stewart rejected Santee’s attempt to “create new law as to this factor from Sanchez.” Santee next argued that even if he was not a Jones Act seaman, there was no federal jurisdiction under the OCSLA because he did not allege in his complaint that the DEEPWATER CONQUEROR was attached to the seabed. Judge Stewart easily disposed of that argument as the affidavits provided by the defendants established that the DEEPWATER CONQUEROR was attached to the seabed of the OCS at the time of the accident. Judge Stewart then turned to the motions for summary judgment of the defendants. As Santee was not a seaman, his claims against Oceaneering were barred by the exclusive remedy of the LHWCA. With respect to Transocean, Judge Stewart rejected Santee’s challenges for each of the three Scindia duties under Section 5(b) of the LHWCA. He disagreed with Santee that there was a fact question whether the condition of the equipment was open and obvious or the equipment was subject to the control of Santee, noting that the turnover duty does not extend to open and obvious hazards. For the active control duty, Santee argued that Transocean controlled the “folks on th[e] drill ship” and that it took precautions to ensure the safety of everyone on the vessel by ordering basic safety training. Judge Stewart answered that summary judgment was proper based on Santee’s testimony that he installed the equipment and that it was under his control, reasoning that “[t]he daily presence of the vessel’s agents to apprise the progress of work or to ensure some degree of orderliness is not ‘active control.’” As to the duty to intervene, Judge Stewart rejected the “conclusory assertions” that Transocean actually knew of the impropriety of the procedure. As Santee was covered under the LHWCA, his unseaworthiness claim failed by the enactment of Section 5(b) that replaced unseaworthiness with negligence (applicable both to Transocean and to Chevron, which was the charterer of the DEEPWATER CONQUEROR). Finally, Judge Stewart rejected Santee’s argument under Louisiana law that Chevron had undertaken operational control by conducting safety checks and requiring Oceaneering to comply with safety instructions, citing the terms of the contract between Chevron and Oceaneering that designated Oceaneering as an independent contractor with complete control over its workers and the manner of performance of the services. See April 2024 Update.
Santee sought rehearing en banc from the decision of the panel, supported by amicus curiae briefs, and, on May 21, 2024, the panel treated the petition as a petition for panel rehearing and withdrew the original opinion.
Earline McBride and her then-fiancée were passengers on the CARNIVAL ECSTASY. At the conclusion of the vacation, McBride (who weighed over 300 pounds) asked to use a wheelchair to disembark the vessel to the terminal building in Miami, Florida. She was being pushed by Carnival crewmember Charles when the wheels of the wheelchair became caught by a hump at the end of the gangway, and McBride fell out of the wheelchair. McBride brought this suit against the cruise line in federal court in Florida and engaged Frank Fore as a liability expert, which included an extensive biometric analysis of the McBride fall with torso acceleration analysis and back shear force analysis. The cruise line responded with its own liability expert, Zdenek Hejzlar, who took photographs and measurements of the ramp and gave opinions about the design and installation of the ramp and its relationship to the injury. McBride also proffered Dr. Thomas Roush, an orthopedic spinal surgeon, as an expert on the cause of her injuries, her impairment, and the cost of future procedures she might need. Judge King agreed to strike the opinions of both Fore and Hejzlar, concluding that they were based on methodology that was unreliable. Judge King considered Fore’s ejection calculations did not support his opinions, which were based almost entirely on anecdotal experience or speculation. Judge King found Hejzlar’s methodology to be unreliable because the ramp changes angle with the tide, and his opinion had no repeatable scientific methodology explaining how the measurements he made related to the angle of the ramp at the time of the McBride’s accident. Judge King struck Dr. Roush’s opinions on the cause of the plaintiff’s injuries as they were based on Fore’s opinions and because there was no scientific methodology for his opinions. However, Judge King ruled that Dr. Roush’s opinions about future back surgery in the 20-to-30-year expectation level for the 65-year-old plaintiff were not unduly speculative and would be helpful to the jury. See August 2019 Update.
After Judge King recused himself, Judge Gayles held a jury trial in which McBride requested $575,000 for future pain and suffering, $412,820.58 for past medical damages, and $250,000 for future medical damages (a total of $1,237,820.58). The cruise line argued that the jury should award no more than $10,543.59 for past medical expenses (for the emergency medical attention following the incident), and the jury awarded $10,543.59. McBride appealed to the Eleventh Circuit, arguing that Judge Gayles abused his discretion in allowing the cruise line to read the deposition testimony of Charles to the jury over her Rule 32 objection. Prior to trial, McBride’s counsel advised that McBride had subpoenaed Charles, but Charles had stated at his deposition that he did not want to attend trial. The cruise line advised the court that the parties had agreed to use designated deposition testimony in the event Charles did not appear, and McBride’s counsel did not object. McBride’s counsel also did not object in a later pre-trial discussion. However, McBride did object to Charles’ testimony at trial on the ground that the cruise line had not tried to subpoena Charles on its own. Judge Gayles admitted the testimony because the parties had spent considerable time, including the previous evening, going over their designations without any indication that McBride would oppose admission of the deposition. Charles’ testimony addressed not only liability, but also damages as he explained how he continued to hold the wheelchair as she fell, to release her slowly. As McBride’s counsel had not objected during the several discussions about the admission of the deposition and the determination of the designations to be introduced and waited until the moment his deposition was to be presented, Judge Lagoa, writing for the Eleventh Circuit, held that Judge Gayles had not abused his discretion in admitting the testimony. McBride also argued that the jury verdict was inadequate because the jury awarded medical expenses for the emergency care immediately after the accident but did not award any pain and suffering. The parties briefed this issue under Florida law, and Judge Lagoa applied Florida law in holding that Judge Gayles erred in denying McBride’s motion for new trial under Rule 59 solely as to pain and suffering related to the award for past medical expenses related to the emergency care. Judge Lagoa did not order a new trial on damages in their entirety, limiting the new trial to the sole issue of pain and suffering related to the emergency care.
From the federal district courts
Nicholas Volk, a passenger on the CARNIVAL CELEBRATION, was injured while walking along the walkway for passengers to use to gain access to Costa Maya, Mexico, when he was struck by flying debris believed to be a steel grate or pylon from a surge of water. Volk brought suit in federal court in Florida against the cruise line and ITM Group MX, an entity Volk alleged was hired by Carnival to operate port services and attractions in Costa Maya. Carnival filed a motion to dismiss, asserting that the complaint failed to adequately plead notice and that the complaint impermissibly mixed allegations against the defendants without specifying which defendant did what. Magistrate Judge Goodman granted the motion to dismiss the complaint without prejudice, noting an overarching concern that the complaint was overly conclusory and devoid of specific factual allegations. Before addressing the specific challenges to the complaint, Magistrate Judge Goodman discussed the duty owed by the cruise line for the injury that occurred off the ship, noting that the duty of care is limited to the duty to warn when a passenger is injured during a shore excursion operated by a third party (there may be an obligation under the reasonable care standard, however, when there is an agency relationship between the cruise ship and the excursion operator). In this case, the injury occurred off the ship but not during an excursion, and the cruise line and passenger agreed that the appropriate standard was reasonable care under the circumstances. That standard required that the cruise line have actual or constructive notice of the dangerous condition (an unsecured grate or pylon being tossed onto the walkway by severe sea conditions). Volk alleged that crewmembers, agents, and/or employees of the cruise line were standing within a close distance to the subject area, but Magistrate Goodman did not believe that this “nebulous allegation” was sufficient for actual notice. As to constructive notice, Volk did not allege any prior similar incidents. Thus, the inquiry was whether the hazardous condition existed for a sufficient length of time to establish constructive notice. Magistrate Judge Goodman noted that the passenger in the Eleventh Circuit’s Holland decision alleged that there were crewmembers in the surrounding area, and the appellate court held that the allegation was insufficient because he did not allege that there were crewmembers in the immediate area who could have observed or warned the passenger of the hazard. Therefore, as in Holland, Volk’s allegation of crewmembers within a close distance was insufficient, and Magistrate Judge Goodman held that the pleading did not state a claim for negligence against the cruise line. Magistrate Judge Goodman also held that the complaint was insufficient because it failed to explain which of the two defendants did what, asserting counts of negligent failure to warn, negligent failure to maintain, and general negligence against the defendants together. Magistrate Judge Goodman accepted that multiple causes of action may be pleaded against multiple defendants; however, he cautioned that each defendant must be specifically identified, and the conduct must be attributed to each defendant. Consequently, he recommended that the complaint be dismissed without prejudice with leave to file an amended complaint.
Milton Burgess was employed by C&J Marine as acting captain on the M/V EMILY ALEXIS. On August 7, 2023, Burgess reported issues with the turbo on the starboard main engine, and the next day there was a fire in the starboard main engine turbo. Burgess started toward the engine room, but he turned around to retrieve a fire extinguisher and slipped on the wheelhouse floor. Burgess brought this suit in federal court in Louisiana against C&J Marine, seeking to recover for negligence under the Jones Act and unseaworthiness under the general maritime law. C&J moved for summary judgment, arguing that the wheelhouse floor was not unreasonably slippery and citing Burgess’ deposition testimony that his left knee lost strength and buckled under him. Burgess responded that C&J failed to use a non-skid or slip-resistant flooring in the wheelhouse as is customary in the maritime industry. Judge Africk pointed out that Burgess was not arguing that the fire caused his fall, and he found a fact question whether C&J’s failure to install non-slip flooring fell below the applicable standard of care in the maritime industry. For the same reason, Judge Africk held that Burgess had raised a fact question of unseaworthiness, and he denied the motion for summary judgment.
The owner of the yacht NOBLE HOUSE took the vessel to Derecktor’s shipyard in Dania, Florida, for repair and maintenance work, including over 100 hours of work on the vessel’s rudders. After the port rudder fell away from the vessel causing it to partially sink while navigating from The Bahamas to Fort Lauderdale, Florida, the vessel owner brought this action against the shipyard seeking to recover for negligence, breach of contract, unjust enrichment, and breach of the warranty of workmanlike performance. The owner sought damages for salvage, repair, dockage, and lost profits. The shipyard moved to dismiss the counts for negligence, breach of contract, and unjust enrichment and to strike the owner’s prayer for relief. Judge Gayles agreed that the same allegations were asserted for the negligence and contract claims, and he dismissed the negligence claim as it was not independent of the contract claim. As neither party disputed the existence of a contract, Judge Gayles dismissed the claim for unjust enrichment. With respect to the contract work, the allegations of poor workmanship and substandard work did not give the shipyard notice of the exact provisions of the contract that were breached. Therefore, Judge Gayles dismissed the contract claim, advising that the owner could file a motion seeking leave to amend the contract allegations. In defense of the claim for breach of the warranty of workmanlike performance, the shipyard asserted the contractual provision limiting recovery to repair or replacement of the defect and providing that consequential damages were not recoverable. The owner argued that the clause was unenforceable because it did not create a deterrence to negligence, but Judge Gayles held that the shipyard’s repair and replacement obligation was a sufficient deterrent to negligence, and he struck the demands for damages that were precluded by the contract. Finally, the owner sought attorney fees under Florida law. Judge Gayles held that maritime law, not state law, was applicable to the vessel repair, and, as the contract only provided for the recovery of attorney fees by the shipyard, no attorney fees could be recovered by the owner. See October 2021 Update.
After Noble House filed an amended complaint, Derecktor filed a motion to dismiss for failure to state a claim or to strike certain allegations. In light of the contract between the parties, Judge Gayles dismissed the negligence, unjust enrichment, and gross negligence claims (noting that even if the gross negligence claim was not barred by the independent tort doctrine, the claim was insufficiently pleaded). Judge Gayles did, however, reconsider the enforceability of the limitation of liability in the contract, ruling that the determination whether the clause clearly and unequivocally indicated the parties’ intentions and provided a deterrent to negligence involved a fact-intensive inquiry that was best determined by summary judgment and not a motion to dismiss. See August 2022 Update.
The case was tried in a non-jury trial before Judge Gayles, who held that Noble House failed to prove its claims for breach of contract and breach of the warranty of workmanlike performance. As Derecktor was the prevailing party, it moved for an award of attorney fees in the amount of $294,440.75 pursuant to the contract between the parties. Noble House did not respond, and Magistrate Judge Strauss approved the hourly rates for three attorneys at $295 per hour for shareholders and $245 per hour for an associate (noting that higher rates have been approved in comparable cases). After reviewing the invoices, Magistrate Judge Strauss recommended minor reductions in the hours sought for the three attorneys (3.2 hours out of 150.8 hours, 4.1 hours out of 271.55 hours, and 14.5 hours out of 265.1 hours). Thus, Magistrate Judge Strauss recommended fees be awarded in the amount of $280,194.25. Derecktor also sought $49,067.95 in non-taxable costs, and Magistrate Judge Strauss recommended an award of $40,686. Noble House did not object, and, on May 7, 2024, Judge Gayles adopted the award of fees and costs recommended by Magistrate Judge Strauss.
Hein V. Quach brought this suit in federal court in Louisiana against his former employer, owner of the shrimp boat M/V ST. MARTIN VI, for injuries Quach suffered when the boat struck an offshore platform. The defendant did not answer, and Judge Summerhays awarded Quach a default judgment in the amount of $248,847. Quach received chiropractic treatment for his injuries in the amount of $3,682 until he reached maximum cure. The judgment included the $3,682 in medical expenses for maintenance and cure, $4,400 for maintenance (at $25 per day), $765 in post-maximum cure palliative expenses under the Jones Act, $120,000 for lost wages, $50,000 for pain and suffering, and $70,000 for punitive damages for callous and willful failure to pay maintenance and cure. He awarded prejudgment interest at 5.16%.
McKinney Salvage asserts that it was hired by Southwest Materials to raise Track Hoe Barge SMI 101, which sank in the Mermentau River in Louisiana. McKinney Salvage raised the barge and submitted an invoice to Southwest Materials in the amount of $207,886.99. Southwest Materials did not pay the amount, responding that it did not enter into a written contract and the amount charged was excessive. Southwest Materials expected its insurer to pay for the work and would not have proceeded with the work proposed by McKinney Salvage if it had known that its insurer would deny the claim. Judge Cain first addressed whether the parties entered into a contract, noting that Southwest Materials admitted that it contacted McKinney Salvage to request salvage services by means of McKinney Salvage’s heavy lift derricks to raise the Barge which had sunk in the Mermentau River. McKinney Salvage bid the project with two options, and Southwest Materials accepted the option for divers placing salvage hatches to refloat the Barge. That option was unsuccessful, and Southwest Materials sent an email accepting the second option for two derrick barges and an assist crane. Nonetheless, Southwest Materials argued that there was no written contract, but Judge Cain rejected that argument, stating that there was an email exchange with an offer and acceptance. Southwest Materials next argued that the work performed was markedly different than the simple terms of the email exchange, including an additional diver, unauthorized equipment, and additional days. Judge Cain answered that the argument went to the amount of damages, not to whether there was a breach of contract. Therefore, as Southwest Materials had paid nothing, Judge Cain granted partial summary judgment that Southwest Materials had breached the maritime contract, concluding that there were fact questions as to whether Southwest Materials had been overcharged.
Spliethoff Transport chartered the M/V DELTAGRACHT to Phyto-Charter Inc. and then brought this suit in federal court in New York seeking to compel arbitration based on a New York arbitration clause in the charter party when Phyto-Charter allegedly breached the charter party. Phyto-Charter opposed arbitration, and Judge Oetken ordered arbitration and appointed Charles B. Anderson as the arbitrator. Anderson issued an award in favor of Spliethoff for $633,558.68 (including an award of attorney fees), and Phyto-Charter moved to vacate the award, arguing that Anderson acted with “evident partiality” based on pre-award communications with counsel for Spliethoff. Phyto-Charter also moved to disqualify counsel for Spliethoff, claiming that the attorney “entered into a corrupt agreement with Anderson to exchange payment for a favorable arbitration agreement.” Spliethoff moved to confirm the award. Phyto-Charter argued that Anderson manifestly disregarded the law in awarding attorney fees, but Judge Oetken held that Anderson provided a well-reasoned justification for his award based on Phyto-Charter’s refusal to accept Judge Oetken’s ruling upholding the validity of the arbitration clause, causing [Spliethoff] to incur substantial and unnecessary legal costs addressing the issue in these proceedings.” As to the claim that there was a corrupt deal/partiality, Anderson directed each of the parties to deposit half of his fee of $15,000 into its respective escrow account, but Phyto-Charter declined to do so. Anderson then advised the parties that payment of the fee was the joint-and-several obligation of the parties and that Spliethoff may advance Phyto-Charter’s share, subject to its right to recover any portion of the arbitrator’s fee that may be assessed against Phyto-Charter. Anderson advised the parties that he was prepared to issue his award on August 22, 2022, and on September 1, 2022, he asked Spliethoff’s attorney if Spliethoff would pay Phyto-Charter’s portion of the fees. Spliethoff agreed to pay half—thus, the corrupt bargain. Judge Oetken pointed out that there was no possible showing of partiality because the payment was made after the arbitrator had announced that he was prepared to issue the award, and there was no evidence that the award changed after the payment was made. Similarly, the motion to disqualify counsel failed because Judge Oetken held that Phyto-Charter had not made a colorable claim of any improper conduct. Finally, Spliethoff requested that the court order Phyto-Charter to pay Spliethoff’s attorney fees to resist Phyto-Charter’s arguments for vacatur on the ground that the arguments were frivolous and groundless. Judge Oetken gave Spliethoff leave to submit a formal declaration in support of its application for an award of attorney fees. See October 2023 Update.
Spliethoff requested $10,895 in attorney fees, but Phyto-Charter responded by seeking a stay because it had raised meritorious issues in its appeal to the Second Circuit (No. 23-7308). Judge Oetken noted that the court had an inherent equitable power to award attorney fees when counsel acts in bad faith, vexatiously, wantonly, or for oppressive reasons or when a challenger refuses to abide by an arbitrator’s decision without justification. In this case, Judge Oetken found that Phyto-Charter’s “obstructive behavior and dilatory tactics have marked every stage of this needlessly protracted litigation,” characterizing the motions as “frivolous and bad-faith attempts to refuse to abide by the arbitrator’s decision” and adding that “Phyto-Charter has not relented in its employment of vexatious tactics.” He found the court had the inherent equitable power to award attorney fees because “counsel for Phyto-Charter has acted vexatiously, wantonly, and in bad faith in refusing to abide by the arbitrator’s decision without justification.” Judge Oetken reviewed the invoice from Spliethoff’s counsel and held that the 36.6 hours spent on the case were reasonable and not duplicative. He also agreed that the rates for partner time ($325 per hour), associate time ($130 per hour), and paralegal time ($100 per hour) were reasonable. Therefore, he ordered payment of $10,895 in attorney fees.
Keith Prieur was working for Entergy, conducting a pre-construction site visit in the Jean Lafitte National Historic Park and Preserve in Louisiana. Entergy hired Lirette Airboat Service to transport Prieur to the inspection, but the airboat struck a tree stump in the marsh, and Prieur was ejected from the boat. Prieur file a suit against Lirette Airboat Service in state court in Jefferson Parish, Louisiana, and Lirette Airboat Service brought this limitation action in Louisiana federal court. Prieur filed a claim in the limitation action and moved to dismiss the federal suit on the basis that the court lacked admiralty jurisdiction over his tort claim because the tort did not occur on navigable waters. The incident report stated that the airboat was running a “fresh trail” in grasses with a height of about 4-5’ tall. The airboat struck a small stump beneath the grass line, causing Prieur to roll out of the airboat onto the marshy grass. A Google Earth image of the location depicted a grassy, marshy area. Lirette Airboat Service responded that the location was described as Bayou Segnette, Lafitte, Louisiana, and that the incident occurred in a tributary of Bayou Segnette that contained grasses. Reasoning that it was the burden of Lirette Airboat Service to establish the jurisdiction for its limitation petition, Judge Milazzo held that Lirette Airboat Service had failed to establish that the area where the airboat hit the stump was capable of navigation in interstate travel or commerce. Lirette Airboat Service cited a decision from the same court for the proposition that inland marshes are not explicitly excluded from being found to be navigable, but Judge Milazzo held that the evidence in this case did not establish that any portion of the area at issue had a clear path that was navigable. Accordingly, she dismissed the limitation action for lack of admiralty jurisdiction.
Lynn Mayer, a passenger on the CARNIVAL VENEZIA, brought this suit against the cruise line in federal court in Florida alleging that the cruise line served her a frozen drink that contained shards of glass blended into the drink. Her pleading contained three negligence claims (negligent failure to maintain, negligent failure to warn, and negligent failure to train), and she sought compensatory and punitive damages. The cruise line moved to dismiss the three counts on the ground that Mayer failed to allege notice. Mayer pleaded that the cruise line should have known that glass could break near the areas where the ice for the bar is kept and that there is a significant chance that a piece of broken glass would end up in the ice, and Judge Altman agreed that the allegations were “plainly sufficient to plead actual or constructive notice.” Judge Altman did agree that Mayer failed to properly plead negligent training because she did not identify any actual policies or training procedures to establish failure to train. Mayer alleged that the cruise line breached its duty by failing to train its bartenders to periodically and properly check the bar area to clean and remove any broken glass and to conduct inspections to ensure that dangerous matter, such as broken glass, does not get added to frozen drinks. However, Judge Altman instructed that a negligent training claim involves failure in the implementation or operation of a training program. As Mayer did not allege that the cruise line had a training program for its bartenders, much less that the program trained on the dangers of broken glass, Judge Altman dismissed the claim for failure to train. Finally, the cruise line moved to dismiss the claim for punitive damages. Mayer alleged that the cruise line “acted with a willful, wanton disregard for the safety of its passengers” in serving Mayer a frozen drink that contained shards of glass. Judge Altman noted that the judges in the Southern District of Florida have applied different standards on the issue of whether punitive damages are recoverable under the general maritime law. He did not, however, need to weigh in on the difference as Mayer did not offer any facts to support the claim for punitive damages, regardless of the standard that is required for an award. Therefore, he dismissed the request for punitive damages.
Nestor Perera, a passenger on the CARNIVAL CONQUEST, was walking to his interior stateroom with his grandson when he tripped and fell on the carpet. Perera claims that the carpet was bundled, poorly maintained, or improperly placed. He saw what appeared to be carpet cleaning equipment in the area, but he did not see any warning or caution signs. Perera brought suit in federal court in Florida against the cruise line for negligent failure to maintain, negligent failure to warn, negligent training, negligent supervision, and negligent design or construction, and the cruise line moved to dismiss the complaint. The complaint contains extensive allegations, including assertions of notice, but the cruise line complained that the allegations were inconsistent. For example, Perera claimed that the cruise line required crewmembers to post warning signs (imputing notice) but also alleged that the cruise line failed to post adequate warnings. The complaint alleged notice regarding slip and fall injuries, not trip and fall injuries like Perera’s claim, and the complaint inconsistently alleged that the signs should have warned of water on the floor. Magistrate Judge Goodman disagreed with the cruise line’s argument on consistency, answering that the complaint discussed both bundled carpet (tripping hazard) and the risk of water on the deck (slipping hazard). He gave as an example the pleading that “[t]his bundled, poorly maintained, or improperly placed carpeting existed for hours and hours of crew and/or passengers tracking, dripping, and/or otherwise bundling carpet through the day and into the evening.” Magistrate Judge Goodman considered the numerous examples of slip and fall accidents to be sufficiently similar to Perera’s trip and fall to survive a motion to dismiss, reasoning that this distinction “might be more effectively analyzed” after discovery at the summary judgment stage. Magistrate Judge Goodman also considered the allegation of negligent training to be sufficient but not the allegation of negligent supervision because Perera did not allege that the cruise line knew or should have known that its crewmembers were unfit or that the cruise line failed to investigate or take action against the crewmembers. As Perera pleaded “myriad facts” concerning the cruise line’s “purported intimate involvement in the design and construction process of the ship,” Magistrate Judge Goodman considered the negligent design claim to be sufficiently pleaded to avoid the motion to dismiss. Consequently, he recommended that the cruise line’s motion be denied as to all counts except the claim for negligent supervision, and that Perera be granted leave to file an amended complaint.
In our December 2023 Update we discussed Judge Fallon’s finding in another case after a bench trial that LaShip was not liable for damage caused to the JOSHUA CHOUEST (owned by Reel Pipe) when a vessel that was moored at the LaShip docking facility in Houma, Louisiana became unmoored during Hurricane Ida and struck the JOSHUA CHOUEST. This suit involves damage to docks at Gulf Island Shipyards and two vessels under construction when the BETTY CHOUEST broke away from its moorings at LaShip during Hurricane Ida and was swept down the Houma Navigation Canal to the Gulf Island Shipyards. Gulf Island alleged that it was the BETTY CHOUEST that caused the WILD HORSE and WAR HORSE to become unmoored. LaShip filed a counterclaim against Gulf Island Shipyards, alleging that the BETTY CHOUEST did not contact the WILD HORSE or WAR HORSE before they broke free, and that the WILD HORSE was improperly moored and struck the BETTY CHOUEST after it broke free. Therefore, LaShip sought recovery from Gulf Island Shipyards for damages that LaShip may have to pay. Judge Fallon found that both LaShip and Gulf Island Shipyards were at fault for failing to properly moor the BETTY CHOUEST and the WILD HORSE. He found that the BETTY CHOUEST did not come into contact with the WAR HORSE or WILD HORSE while they were docked but that it did come into contact with the WILD HORSE after that vessel broke free. Judge Fallon apportioned fault to LaShip (35%) and Gulf Island Shipyards (65%) and found the damages to the WILD HORSE and BETTY CHOUEST that were apportioned accordingly. See March 2024 Update.
Gulf Island sought reconsideration of Judge Fallon’s findings of fact and conclusions of law, arguing that he committed several manifest errors. Gulf Island argued that he erred in finding fault in a 65/35 ratio, as opposed to 50/50 because he did not mention the hiring of DLS Marine to assist with the mooring plans with which Gulf Island complied, and because the evidence showed that LaShip’s vessels broke free first, before the peak hurricane winds hit the area. Judge Fallon noted that he previously described in detail his reasons for finding less fault on LaShip, and he found no manifest error in his findings. Gulf Island also argued that Judge Fallon erred in his finding of damages for the WILD HORSE of $503,130.51, based on the earlier estimate, instead of $804,420 from a later estimate. Gulf Island argued that the difference was a function of having a real bid from the shipyard, offering to do the work, rather than a first estimate. However, the increase was so substantial that Judge Fallon declined to find that explanation to be credible. Gulf Island disputed the finding that the WAR HORSE was not entitled to any recovery because the evidence did not show contact with a Chouest vessel and the vessel remained partially moored following the storm yet with damage that included orange paint. Gulf Island also argued that LaShip failed to prove that damage to the BETTY CHOUEST were caused by a collision with the WILD HORSE as opposed to other breakaway Chouest vessels, and it argued that the court erred in denying damages for the SALVO as it had orange paint that Gulf Island contends was caused by the BETTY CHOUEST colliding with the SALVO. Judge Fallon rejected these arguments, answering that he had considered them in his findings and that there were no inconsistencies in his findings. Therefore, he denied the request for reconsideration.
Three Fifty Markets sold and delivered bunkers to the vessel M/V ARGOS M at the request of AUM Scrap and Metals Trading, alleged to be the charterer of the vessel. AUM Scrap failed to pay for the bunkers, and Three Fifty brought suit against the vessel in federal court in New Orleans, resulting in the arrest of the vessel. Shortly thereafter, PMG Holding, another bunker supplier, filed suit against the vessel in federal court in New Orleans, resulting in another warrant for arrest of the vessel. Three Fifty and PMG Holding moved for interlocutory sale of the vessel after no claim was made, the crew had not been paid, and the costs to supply the arrested vessel were growing. The next claim was filed by ArcelorMittal, whose cargo of steel was aboard the vessel pursuant to a charter of the vessel to transport the steel to Costa Rica. Argos Bulkers finally filed a statement of interest in the vessel, challenging the maritime lien claims of Three Fifty and PMG Holding, and Three Fifty and PMG Holding filed motions for summary judgment seeking enforcement of their lien claims. Judge Fallon found fact questions on the issue of whether the fuel supplied by Three Fifty was purchased by an authorized agent of the vessel, and he denied summary judgment to Three Fifty. In that opinion, Judge Fallon addressed PMG Holding’s motion. PMG Holding argued that it sold the bunkers to AUM Scrap. When Argos Bunkers alleged that the charterer of the vessel was Shimsupa, PMG Holdings claimed that AUM Scrap was the agent of Shimsupa and that PMG Holdings sold the bunkers with the understanding that AUM Scrap had the authority to bind the vessel. Argos argued that although the master accepted delivery of the bunkers and the fuel was consumed by the vessel, no one with actual or apparent authority to bind the vessel purchased the bunkers. The parties did not dispute whether an individual with actual authority purchased the bunkers, and the dispute focused on whether an entity had apparent authority to bind the vessel. PMG Holdings argued that both the charterer (Shimsupa) and its agent (AUM Scrap) had apparent authority because they are majority owned and controlled by the same person and because it is recognized in the industry that AUM Scrap acts as an agent for Shimsupa. Unlike Three Fifty, PMG Holdings produced documents reflecting that the vessel was aware of the bunker sale. Argos responded that Shimsupa was responsible for purchasing the bunkers, but that the bunkers were purchased by AUM Scrap, as reflected in the documents for the sale that listed AUM Scrap as the charterer. Although Judge Fallon found that necessaries were procured for the vessel, there were broken links in the chain of apparent authority. He also found that there were fact issues with respect to the damages. Accordingly, he declined to grant summary judgment to PMG Holdings. See January 2024 Update.
It was then the vessel’s turn to file a motion for summary judgment, arguing that the no-lien clauses in the charter with Shimsupa prevented Three Fifty from enforcing a lien on the vessel. The validity of the lien turned on whether it was reasonable for Three Fifty to believe that AUM Scrap had apparent authority to make the purchase of bunkers on behalf of the vessel. This was the same issue on which Judge Fallon found a fact question on the prior motion for summary judgment, and it continued to present a fact question that precluded summary judgment: “once it’s a question of reasonable[ness], that’s always a question of fact.” Judge Fallon did stress “that germane to resolving whether AUM—or any other entity authorized by the Vessel—made the fuel bunker purchase involves taking a closer look at the past practices between the parties, the customs in the industry, as well as the nature and extent of the charter and its agents’ authority.” See March 2024 Update.
Judge Fallon held a non-jury trial and found that AUM Scrap, who had presumptive authority to bind the vessel, transacted with Three Fifty Markets, through a bunkering service, to purchase the bunkers. The order confirmation contained Three Fifty Markets’ General Terms and Conditions of Sale that “will apply to this contract.” As the terms contained a provision that the laws of the United States, including the Commercial Instruments and Maritime Lien Act, would apply, Judge Fallon did not have to “delve into the ‘thorny inquiry’ of Lauritzen,” and he held that United States law applied (noting that the Fifth Circuit has routinely addressed the providing of bunkers through intermediaries). Turning to whether there was a lien on the vessel, Judge Fallon held that the vessel could overcome the presumptive authority of AUM to purchase the fuel by demonstrating that Three Fifty Markets had actual knowledge of the no-lien clause in the charter party. As the vessel failed to make that showing, Judge Fallon upheld the lien against the vessel. He awarded Three Fifty Markets the amount of the invoice, $629,600, plus prejudgment interest at the applicable state rate (declining to award the contract interest rate of 2% per month as it is greater than the amount necessary to compensate for the loss stemming from the unpaid balance) and custodia legis expenses of $31,530.79 (without interest on the expenses). Judge Fallon also agreed that attorney fees would be separately awarded.
On May 4, 2019, Jeffery Bardwell, a resident of Louisiana, injured his arm on a rig owned, operated, or managed by Valaris PLC and Ensco Inc. while the rig was working offshore near Abu Dhabi. Bardwell brought suit in state court in Harris County, Texas against Valaris and Ensco on October 22, 2021, seeking to recover under the Jones Act and general maritime law. The defendants moved to dismiss the claims as having been discharged in the bankruptcy proceeding filed by Valaris PLC in federal court in Texas on August 19, 2020. Bardwell did not file a claim before the bar date in the bankruptcy, but he sought emergency relief from the discharge to allow him to pursue his state claim. Before the hearing on the motion for relief, Valaris and Ensco moved to exclude the testimony of Bardwell’s expert physician, Dr. Matthew Hyzy, who was hired to create a life care plan for Bardwell. At a hearing on the motion seeking relief from the discharge, Dr. Hyzy testified that Bardwell’s anxiety was caused by the injury on the Valaris rig. During the cross examination of Dr. Hyzy, he was asked if he discussed Bardwell’s relationship with his ex-wife during his interview with Bardwell, and he responded: “No sir. That was not something that we discussed.” When asked if the breakup of his marriage could be a cause for depression, Dr. Hyzy answered: “That’s something that I’m not prepared to opine on. I didn’t have that discussion with Mr. Bardwell.” Bankruptcy Judge Isgur asked for briefing after the hearing, and Dr. Hyzy submitted a declaration that he had explored with Bardwell potential causes of his anxiety that could have arisen both before and after his injury and that he was able to consider potential alternative causes for the future anxiety. Bankruptcy Judge Isgur responded that Dr. Hyzy “does not get to change his testimony from the hearing by submitting the declaration. It is clear Hyzy did not consider Bardwell’s marital problems in reaching his diagnosis of Bardwell’s anxiety.” Bankruptcy Judge Isgur concluded that “Hyzy’s failure to consider this obvious alternative factor makes Hyzy’s opinion unreliable.” The question was whether Dr. Hyzy was, nevertheless, qualified to opine on some future needs. Bankruptcy Judge Isgur answered that “if a physician is willing to give testimony about one area of his supposed expertise and does so in a remarkably unprofessional manner, it raises serious questions about whether the physician is qualified to give any testimony.” He concluded: “Based on Hyzy’s lack of rigor with respect to his psychological analysis, and his willingness to reach conclusions on long term physical limitations without any meaningful examination, the Court concludes that Hyzy is not qualified under Daubert.”
Ashley Cooper claims that she was employed by International Marine and Industrial Applicators (and two other International Marine entities) to perform industrial painting, blasting, cleaning and other related work on the U.S.S. WILLIAM P. LAWRENCE, which was located in a graving dock at the Pearl Harbor Naval Shipyard in Hawaii. While trying to remove contaminants, her arm was sucked into one of the hoses of the vacuum, and she brought this suit in state court in Hawaii against her employer under the Jones Act, her supervisor (Doug Eiss), the general contractor, and some subcontractors. The defendants removed the case to federal court, and International Marine and Eiss moved to dismiss the claims against them, arguing that the LHWCA provided Cooper’s exclusive remedy against International Marine and Eiss. Before addressing whether Cooper was a seaman, Judge Gillmor noted that the complaint simply stated that Cooper was employed by the three entities and did not specify which of the entities was the employer. Citing Cosmopolitan Shipping Co. v. McAllister, Judge Gillmor held that there can be only one Jones Act employer and the complaint did not specify the employer or allege facts establishing an employment relationship so as to support a Jones Act claim. Turning to the issue of seaman status, Judge Gillmor reasoned that a land-based worker who spends 100% of her time on a vessel but without any seagoing activity is not a seaman under the Jones Act. Thus, Cooper was required to assert facts to demonstrate the nature and duration of her employment, including the total amount of seagoing activity. Consequently, as she did not plead facts to establish that she was a seaman, her claims under the Jones Act and for maintenance and cure were dismissed, with leave to plead facts establishing seaman status. Eiss also moved to dismiss Cooper’s complaint, alleging that, as Cooper was not a seaman, Section 33(i) of the LHWCA barred her claim against him (a co-employee supervisor). Cooper asserted that Eiss was liable for willful and wanton misconduct, but Judge Gillmor ruled that the statements in the complaint were merely legal conclusions. She dismissed the count against Eiss with leave to replead a plausible claim that was not barred by the LHWCA. See August 2023 Update.
After Cooper repleaded, International Marine moved for summary judgment as to Cooper’s seaman status and with respect to her claims as a seaman. Judge Gillmore denied the motion for summary judgment with respect to seaman status, finding fact disputes on each of the elements of seaman status. As the vessels on which she worked would degrade over time if she did not paint the vessels, Judge Gillmor held that Cooper presented a question of whether her work contributed to the operation of the vessels. Noting that a vessel does not cease to be a vessel when it is undergoing repairs, Judge Gillmor agreed that a jury should decide whether the vessels had been withdrawn from navigation. Judge Gillmore found sufficient evidence of substantial duration based on Cooper’s testimony that the vast majority of her work for International Marine was aboard Navy vessels, and she found that her repair work was substantial in nature because she was exposed to special hazards and dangers because she was assigned to jobs in tight spaces because of her small size. With even less substantive discussion than she gave on the seaman status, Judge Gillmor held that Cooper presented jury issues on her claims for negligence, maintenance and cure, and punitive damages for failure to pay maintenance and cure.
Jerry Whisenhunt, who owns and charters fishing boats at Dauphin Island and Gulf Shores, Alabama, contacted Scott Meitner, principal owner and president of Ameracat, which designs and manufactures fiberglass vessels from its plant in Ft. Pierce, Florida. Whisenhunt visited the plant on December 6, 2021 and noticed a 39-foot model under construction. Whisenhunt states that Meitner told him that “the boat has a 10-year warranty on the hull, but you won’t need it.” Whisenhunt agreed to purchase the vessel for $394,850 with a promised delivery date of June 1, 2022 (in time for the Alabama snapper season), and he wired $279,350 on January 31 and February 1, 2022. The delivery time was repeatedly extended, and the vessel was finally delivered on May 25, 2023. Just before the vessel was delivered, Meitner asked Whisenhunt to come to the office for “some paperwork,” and Whisenhunt signed the Ten Year Limited Hull Warranty. A few weeks later, on July 7, 2023, Whisenhunt was operating the vessel on a fishing trip when the vessel became sluggish. The crew discovered seawater entering though holes in the hull. The vessel was able to return to shore, but the engines were contaminated with sea water, and an inspection by surveyors revealed that the fiberglass laminate had peeled off, causing a severe hull failure. Meitner inspected the vessel and determined that the hull damage was likely caused by an external force, such as striking an object. Whisenhunt sought to revoke his acceptance of the boat and demanded repayment of the purchase price plus almost $195,000 in incidental and consequential damages. Whisenhunt also presented a claim to his hull insurer, Markel American Insurance Co., but Markel denied the claim based on an exclusion for loss from latent or manufacturing defects. Whisenhunt then brought this suit in federal court in Alabama against Ameracat and Markel, and Ameracat moved to compel arbitration based on the arbitration provision in the Ten Year Limited Hull Warranty. Whisenhunt argued that there were fact disputes about whether the parties agreed to arbitrate that were fatal to a pre-trial motion. Whisenhunt argued that Meitner had promised an unlimited ten-year warranty, and that was the inducement that caused him to purchase the boat, but Ameracat cited the merger clause in the written warranty that it superseded all prior oral or written agreements or discussions. Judge DuBose accepted the inducement argument but noted that Whisenhunt would have to prove the prior agreement’s existence by “clear, precise, and indubitable” evidence. His word against that of Meitner was not enough. Whisenhunt also argued that the parties entered into the contract in January 2022, 15 months before he signed the written warranty. Assuming that the written warranty was a modification of the contract, additional consideration was not necessary for the modification to be valid. Judge DuBose considered Whisenhunt’s argument that the agreement was not valid because of fraud in the inducement, and she noted that there was no dispute that Whisenhunt signed the agreement and had the opportunity to read it. She considered this to be a defense that should be resolved in the arbitration and not by the court. Finally, Judge DuBose addressed the issue of which claims were subject to arbitration. In light of the broad delegation clause, Judge DuBose agreed that all of the claims asserted by Whisenhunt against Ameracat would be submitted for the arbitration. Markel asked Judge DuBose to stay the entire case, including the claims against Markel that were not subject to the arbitration provision. As the issues against Ameracat and Markel overlapped, particularly the issue of what caused the hull loss, Judge DuBose agreed to stay the proceedings against Markel pending the outcome of the arbitration.
Mercedes Fadraga was a passenger on the CARNIVAL CONQUEST. She and her companions went to Deck 9 to have lunch at the buffet, and a companion brought soup back to the table (nestled into a second bowl because it was too hot to be carried in a single bowl). The soup spilled at the table, landing on Fadraga, soaking her pants, and resulting in significant burns. Fadraga brought this suit against the cruise line in federal court in Florida, and the cruise line moved to dismiss the complaint on the grounds that it did not properly plead notice, that the risk-creating condition was not open and obvious, or proximate cause. With respect to notice, the cruise line began by arguing that there was no evidence of a risk-creating condition at all, but Judge Scola easily rejected that argument noting that the soup had been carried from the buffet and resulted in second- and third-degree burns. As to actual notice of the dangerously hot condition, Judge Scola agreed that the complaint did not directly allege actual notice, but he believed that a reasonable inference of cruise line’s awareness of the heat of the soup was inescapable based on the cruise line’s handling the soup from preparation to service. As the cruise line had direct contact and involvement with the arguably palpable hazard, it was not necessary that the passenger establish how long the hazard existed in order for there to be notice. Judge Scola also found the allegations that the cruise line failed to comply with industry standards were sufficient to establish notice (requiring soup not be served at a temperature so as to cause burns), even though she did not cite the specific standard, ruling that it was enough at the pleading stage to allege a violation of industry standards. Turning to the assertion that the failure to warn claim should be dismissed because the pleading did not allege that the hazard was not open and obvious, Judge Scola noted that the complaint lacked basic allegations that the condition was not open and obvious. But, in light of the unique circumstances of the hazard in this case, Judge Scola found the allegations sufficient, “although just barely,” for the court to infer that the unreasonably high temperature of the soup was not open and obvious. He agreed that the danger associated with hot soup may be open and obvious in a general sense; however, the danger that the spilled soup might result in second- and third-degree burns may not be (reasoning that the cruise line failed to “explain how a passenger could appreciate the extent of the heat just by looking at it.” Finally, with respect to proximate cause, Judge Scola agreed that the passenger’s “superficial mention” of ten different ways in which the cruise line allegedly breached its duty was “inartful and unhelpful.” Yet, that focus missed the essence of the complaint, that the cruise line prepared and served soup that was so hot that it caused significant burns to the passenger when it spilled on her. Judge Scola did not consider this to be an allegation of “fault in the abstract,” and he held the complaint plausibly alleged a breach and proximate cause.
David Lavan, an employee of Mike Hooks, was injured on the dredge MIKE HOOKS while it was dredging on the Calcasieu River in Louisiana, when a fire ignited after he lit a cigarette. Mike Hooks filed this limitation action in federal court in Louisiana, and Lavan was the only claimant. A default was entered against all other claimants in January 2021, and Judge Cain agreed to lift the stay so that Lavan could prosecute his claims against Mike Hooks in state court in Calcasieu Parish, Louisiana. In January 2024, Mike Hooks sought leave to file a third-party claim against Conrad Shipyard, and, when leave was granted, Conrad Shipyard argued that it had causes of action against Mike Hooks that must be set forth in the limitation action. Therefore, Conrad Shipyard asked the limitation court to set aside the default so that Conrad Shipyard could file a claim in the limitation action. Lavan did not oppose the motion and requested the court vacate its ruling lifting the stay on prosecuting the state court and to set the limitation action for trial. As Conrad Shipyard was blameless for the late filing, Judge Cain set aside the default and enlarged the time for Conrad Shipyard to file its claim. And, as Conrad did not participate in the stipulations, it was necessary to reinstate the stay to protect Mike Hooks’ rights as to the multiple claims in the limitation action. Therefore, Judge Cain ordered that the stay be reimposed and that the case be referred to the Magistrate Judge for a conference to set the limitation action for trial.
Texas Petroleum was involved in the plugging and abandonment of its well in navigable waters in St. Mary Parish, Louisiana. Texas Petroleum hired Mark Campbell with Campbell Consulting to serve as the company man for the project. There was a loss of containment (blowout) when the blowout preventer failed, and Texas Petroleum hired Wild Well Control to regain control of the well. There was a second blowout, and Wild Well rented a firefighting barge to assist in regaining control. Wild Well brought its employee Darrell Mora to help, and he was on the firefighting barge when gas flowing from the well ignited and resulted in a flashover that injured Mora. Mora brought this maritime negligence suit in state court in St. Mary Parish, Louisiana against Texas Petroleum and Campbell Consulting, and Texas Petroleum removed the case to federal court. The defendants moved for summary judgment, arguing that there was no duty to protect the employee of an independent contractor from open and obvious risks with respect to defects that the independent contractor was retained to fix, based on cases under LHWCA Section 5(b). Mora argued that he was not a longshore worker and the defendants were not vessel owners or operators. The defendants countered with the decision from the Eastern District of Texas in the Alphin case in which Judge Cobb cited cases from the Fifth Circuit that were decided under Section 5(b) despite the fact that he did not consider the injured grain inspector to be covered under the LHWCA. Judge Hicks was not convinced that Section 5(b) should apply when Mora was not a longshoreman injured in stevedoring operations and when Mora was not alleging that a condition of the firefighting barge caused his injury. Instead, Mora alleged negligence of the well operator and company man with respect to control of the well. Finding fact questions to be resolved on the general maritime negligence claims, Judge Hicks denied the motion for summary judgment. See May 2024 Update.
Darrell Mora’s wife, Darlyn Mora, sought damages for loss of society resulting from Darrell’s injury on a vessel in state territorial waters, claiming that loss of society was recoverable in maritime personal injury cases. Citing cases involving Jones Act seamen and the Death on the High Seas Act, Judge Hicks held that Darlyn was not entitled to recover loss of society for her husband’s injury in state waters.
Winnie Frazier, a passenger on the CARNIVAL ELATION, placed her hand on a tabletop while waiting in line for pizza on Lido Deck 10 of the vessel. The tabletop was not secure and came off its pedestal/base, knocking Frazier to the deck. There were no warning signs on the table. Frazier brought this suit against the cruise line in federal court in Florida, alleging failing to maintain, failing to inspect, and failing to warn. The cruise line moved to dismiss the complaint on the ground that the passenger did not allege notice of the allegedly dangerous condition. Frazier responded that she alleged that the cruise line was the sole entity responsible for selecting the furniture and elected not to secure the heavy marble or stone top to the small pedestal base with any nuts or bolts. Judge Moore did not believe that the allegations were sufficient, noting that the passenger had not addressed whether the table overturning was a recurring issue, whether the table was loose for a sufficient time to create notice, or whether there were employees nearby who observed the hazard and failed to take corrective action. As all three counts required notice, Judge Moore dismissed the complaint with leave to properly plead notice.
American Commercial Barge Line and ACBL Transportation Services (ACBL) brought suit against Associated Terminals and Associated Marine Equipment (Associated) in state court in St. James Parish, Louisiana, asserting that Associated moored crane barges to ACBL’s Wash Dock (consisting of several barges moored at ACBL’s facility in Convent, Louisiana), and the vessels broke free during Hurricane Ida, taking the Wash Dock with them and causing injuries and damage. ACBL pleaded that Associated was liable for all of the damages and losses resulting from the breakaway, including damage to the Wash Dock and indemnity for any amounts ACBL may have to pay to third parties. Associated removed the case to federal court, asserting that the federal court had jurisdiction under diversity and, alternatively, based on the court’s original admiralty jurisdiction. ACBL moved to remand the case to state court on the ground that Associate failed to carry its burden to show the citizenship of the parties for diversity. Associated sought leave to file amended notices of removal to set forth the citizenship to establish diversity. Judge Vitter agreed with ACBL that Associated had not properly pleaded the citizenship of the parties, but she disagreed with ACBL that case was removed based solely on diversity. Judge Vitter directed the attention of ACBL to the specific statement in the Notice of Removal that the federal court had both diversity and original admiralty jurisdiction over the case. She rejected “the utterly baseless Plaintiffs’ argument that the Court lacks subject matter jurisdiction over this case because Defendants failed to properly allege the citizenship of the parties in the Notice of Removal.” Therefore, as the court had admiralty jurisdiction, Judge Vitter denied the Motion to Remand (but she did give leave to Associated to file an amended notice of removal that properly pleaded the citizenship of the parties).
This case presents the issue addressed by federal courts in Florida and Rhode Island that were discussed in the May 2024 Update (Beyel Brothers, in which Judge Byron rejected the argument that the alleged untimeliness of the limitation action was a basis to dismiss the action for lack of jurisdiction, and Interstate Navigation, in which Judge McElroy sua sponte dismissed the limitation claim as untimely).
Nancy Skolnik was a passenger on a recreational vessel owned by Steven Aletkin that was involved in a collision on May 29, 2022 with a recreational vessel owned by Ed Seganti in navigable waters in the vicinity of Goose Creek, near Bellmore Channel, Nassau County, New York. Skolnik filed a suit in the Supreme Court of Nassau County, New York on August 7, 2023, and Seganti filed this limitation action on November 1, 2023 in federal court in New York within six months of the suit in state court, seeking to limit liability to the value of the vessel, $168,775.08, but more than a year after the accident. After reviewing the complaint, Judge Choudhury ordered Seganti to file an affidavit addressing whether the complaint was timely filed, and Seganti submitted the letter of representation from Skolnik’s counsel, dated September 22, 2022, advising of his representation for the accident caused Skolnik’s injury through his negligence. Counsel requested that the letter be submitted to Seganti’s insurance carrier and that Seganti secure video and camera footage from May 29, 2022. Skolnik submitted a letter to the court that the representation letter was sufficient notice to trigger the running of the six-month period to file the limitation action, and Seganti responded that Skolnik was not a party to the limitation action and had no standing to submit the letter. Seganti argued that the representation letter did not place him on notice because it did not explicitly identify the nature of the injury alleged or state that a claim could exceed the value of the vessel, but Judge Choudhury was not persuaded, reasoning that the letter was similar to letters that were deemed sufficient notice by other judges. She therefore held that the limitation action was untimely and that the court lacked subject matter jurisdiction over the action.
Damon Bunting worked for Odyssea Marine as captain of its 225-foot offshore supply vessel, ODYSSEA TITAN. He alternated 12-hour watches with first mate, Robert Weiss. The vessel was engaged in cargo operations for drilling platforms in the Gulf of Mexico, offshore Louisiana. Bunting was off duty and asleep when he was awakened by being bounced up and down in his bunk, resulting in his injuries. He went to the bridge and discovered that Weiss, at the direction of the platform’s crane operator, had positioned the vessel so that its stern was facing into the waves. Bunting brought this suit in federal court in Louisiana against Odyssea Marine under the Jones Act and general maritime law, and he retained G. Fred Liebkemann, IV, a licensed mechanical engineer, as his liability expert. Liebkemann reviewed Bunting’s deposition and opined that the ODYSSEA TITAN was slamming, which occurs when a vessel that is lightly loaded is positioned with its bow facing rough waves. He explained that slamming can be alleviated by taking on seawater ballast in the aft tanks to lower the stern; however, unwritten rules prevented the use of cargo tanks for seawater ballast. He added that instructions to avoid headings that induce slamming would have prevented the incident. Odyssea Marine moved to exclude Liebkemann’s testimony because his opinions did not relate to his area of expertise, mechanical engineering, and instead addressed vessel design and operation. His degree and post-graduate study were in mechanical engineering, and he has no education, training, or experience, in vessel operations, but he was involved in the hull design of two liftboats over 20 years ago. Judge Ashe did not believe that Liebkemann was qualified to render the opinions in his report because they concerned naval architecture, marine engineering, and vessel operations—particularly ship handling or vessel maneuvering. Therefore, Judge Ashe excluded Liebkemann’s testimony.
Vikram Singh served as Chief Security Officer of the CARNIVAL LUMINOSA. Singh claims that he developed pain in his left heel from excessive standing, and the cruise line arranged for him to be seen by a doctor in Queensland, Australia. However, before the appointment, he was instructed to disembark and fly to the cruise line’s headquarters in Miami to work with the new Security Training Specialists. He was confronted by his supervisors about allegations that he improperly touched a female employee and introduced her to Captain Carmelo Marino. He was asked to write a written statement, but it was unsatisfactory, and he was forced to write a statement dictated by an investigator. Singh was sent home to India, and, after reporting another incident, Singh was instructed to retire. Singh then brought this suit in federal court in Florida against the cruise line, alleging that he was wrongfully terminated and did not receive medical care. The cruise line moved to compel arbitration in accordance with the arbitration provision in the Seafarer’s Agreement that Singh signed and sought a stay of discovery pending resolution of the motion. Magistrate Judge Torres held a hearing and granted the cruise line’s motion for protective order, and Singh appealed to Judge Bloom, who also considered the motion to compel arbitration. Singh argued that the claim he brought for an intentional tort of extreme and outrageous conduct causing him emotional distress was not subject to arbitration. However, Judge Bloom rejected the argument because the cases on which he relied involved a narrower arbitration clause. The arbitration clause signed by Singh contained a broad delegation clause, and Judge Bloom held that all of the claims in the suit must be heard by the arbitrator. Although she considered the objection to the stay of discovery to be moot, Judge Bloom addressed the merits of Singh’s objection to the stay and held that it was within the discretion of the Magistrate Judge. Accordingly, she granted the motion to compel arbitration and stayed the case pending resolution of the arbitration.
This litigation arises from an allision in Cape May Harbor, New Jersey between the fishing vessel, WILD WILLY, owned and operated by Southern Dawn and Dawn Services, and dredge pipes owned by Great Lakes Dredge & Dock Co. The pilot of the WILD WILLY, Christopher Heitman, passed away during or after the allision, and a passenger on the vessel, Phillip Marchesani, was ejected from the boat and suffered injuries. Marquette, owner of the tugs MR. CONNOR and MISS CAROLINE, which were assisting in the dredging, brought a limitation action in federal court in Louisiana. Southern Dawn/Dawn Services also brought a limitation action in federal court in Louisiana for the WILD WILLY, and that suit was consolidated with the Marquette action. Claims were filed in the Marquette limitation action by Jacqueline J. Heitman and Patricia R. Heitman, in their own right and in the capacity as qualified administrators and personal representatives of the Estate of Christopher Heitman, and by William Heitman and Patricia Orlandini in their own right. Marquette moved to dismiss the claims brought in the individual capacities because, under general maritime law, only qualified administrators may bring wrongful death and survival claims arising from the death of Christopher Heitman. The claimants agreed with Marquette on the claims under the general maritime law, but they argued that they reserved their rights to recover under Louisiana law and New Jersey law. They claimed that Heitman was not a “seafarer” under the Supreme Court’s Yamaha case and that their damages were governed by state law. Chief Judge Brown agreed that New Jersey law may supplement maritime law for the allision in New Jersey waters. As maritime law and New Jersey law both require suit be brought by the executor/administrator of the decedent, Chief Judge Brown agreed to the dismissal with prejudice of the individual claims, noting that the claims of Jacqueline Heitman and Patricia Heitman in the capacity as qualified administrators of the Estate of Christopher Heitman were “fully reserved.”
Magin Luis Caballero, a resident of Houston, Texas, claims that he was a seaman employed by Oceaneering International as an assistant cook on the research vessel PETREL, owned by the U.S. Navy. While the vessel was in drydock in Leith, Scotland for repairs, strong winds dislodged the vessel, causing it to topple over and injure Caballero. Caballero was transported back to the United States, and he brought suit against the United States and the U.S. Navy in federal court in Texas under the Public Vessels Act. Asserting that the vessel was located in Tampa, Florida at the time Caballero brought the suit, the United States moved to dismiss the suit or, alternatively, to transfer the suit to the federal court in Florida. The United States cited the provision in the PVA for venue in the district in which the vessel or cargo is found within the United States, attaching the declaration of Joshua Henson, Technical Manager for the vessel, that the vessel was in Tampa at the time the suit was filed. Caballero responded that venue was proper in the district where the plaintiff resides if the vessel is outside U.S. territorial waters and that the declaration was hearsay because it failed to satisfy the requirements of Texas Civil Practice and Remedies Code Section 132.011. Magistrate Judge Edison responded that “this is federal court. Not only is this federal court—this federal court is exercising exclusive admiralty jurisdiction.” He added: “Texas state law has no relevance to this proceeding whatsoever.” Magistrate Judge Edison found the declaration to comport “to the letter” with federal law and “definitely establishes that venue is proper only in the Middle District of Florida.” Magistrate Judge Edison also noted that Caballero’s complaints about the declaration were “curious given that his own declaration is rife with hearsay.” Accordingly, Magistrate Judge Edison recommended that the case be transferred to the Middle District of Florida where the venue is proper.
William Tisdale was employed by Marquette Transportation as an uncovered steersman on the M/V ST. JOHN. While performing deckhand work on the vessel in a barge fleeting operation on the Houston Ship Channel, Tisdale picked up a lock line on the starboard side of a barge in tow of the ST. JOHN and felt a pop on the right side of his lower back/hip. He was initially diagnosed at an urgent care facility with a back strain, but, when he returned home to Mississippi, he underwent an MRI that reflected disc degeneration at L3-4 with a disc bulge and bulging discs at L4-5 and L5-S1. He was treated by neurosurgeon Donald Dietze, who opined that Tisdale’s disc herniation at L3-L4 was related to his accident and that the conditions at his L4-L5 and L5-S1 levels were aggravations of pre-existing disease (testifying that the aggravation of Tisdale’s spine at the L5-S1 level was caused by the accident). Dr. Dietze recommended that Tisdale undergo a lumbar fusion at L3-L4, but he recommended postponing the surgery as long as possible and that Tisdale undergo a radio frequency ablation procedure to relieve pain but not to treat the underlying condition causing the pain. Marquette did not approve the radio frequency ablation. Tisdale brought this suit in federal court in Louisiana against Marquette, seeking to recover under the Jones Act and under the general maritime law for unseaworthiness and maintenance and cure. Eventually, Dr. Dietze recommended that Tisdale undergo a three-level fusion from L3 to S1. In response to the recommendation for the multi-level fusion, Marquette Transportation retained neurosurgeon John Davis, IV to perform an examination on Tisdale (and review his records). Dr. Davis opined that Tisdale’s low back pain was causally related to the injury, and he recommended a L3-L4 minimally invasive procedure to decompress the L3 nerve root. He found no indication for the surgery at L4-L5 or L5-S1 because Tisdale had “modest age-appropriate degenerative changes” at those levels and there was “not so much as a hint of any nerve root compression at either of those levels” (nor was there any evidence of instability). After the competing opinions had been completed, Tisdale underwent an MRI on November 21, 2022, and Dr. Dietze concluded that there was a new paracentral disc herniation with right L5 and S1 nerve root compression (consistent with Tisdale’s complaint of new right foot weakness). Dr. Dietze opined that this was a failure of the injured disc superimposed onto a degenerative disc (to support his diagnosis of symptomatic progressive degenerative changes at L5-S1). Dr. Davis noted that the protrusion at L5-S1 was a “new finding” that was “not present” on the prior MRI scan. He stated that this new herniation was not related to the work injury and that his recommendation for an L3-L4 minimally invasion procedure remained unchanged. Marquette denied Tisdale’s request for the three-level fusion, and Judge Guidry held a trial on the issue of Tisdale’s entitlement to cure. Tisdale claimed that he was entitled to cure that included the radio frequency ablation procedure and the three-level fusion recommended by Dr. Dietze. Judge Guidry first ruled that the radio frequency ablation procedure was a “palliative treatment that will not serve to improve Tisdale’s back injury.” Therefore, he held that the procedure did not fall within the scope of Marquette’s cure obligation. With respect to the dispute over the extent of surgery, Judge Guidry found Dr. Davis to be more credible than Dr. Dietze, and he agreed with Dr. Davis’s opinion that the three-level fusion was not related to Tisdale’s accident on the vessel and with Dr. Davis’ recommendation for the minimally invasive transforaminal lumbar interbody fusion at the L3-L4 level. Therefore, Judge Guidry held that Marquette’s cure obligation did not encompass the three-level fusion recommended by Dr. Dietze. Finally, Judge Guidry held that Tisdale was not entitled to punitive damages because Marquette was under no obligation to pay for the palliative procedure and because its denial of the multi-level fusion was not arbitrary and capricious. See August 2023 Update.
Marquette then moved for summary judgment on the Jones Act and unseaworthiness claims. Marquette cited the testimony of Tisdale that he did not believe the task was unsafe or unreasonable; it was a one-man task that he had performed many times before; and he knew how to perform this routine task. Tisdale responded that there were crucial facts that he learned during discovery that support a claim that he was not provided with enough equipment, assistance, and manpower to do the assigned task and that Marquette was negligent in failing to warn him of non-apparent dangers. Tisdale argued that he was unaware of Marquette’s lifting limit of 70 pounds above a 60-inch height, yet the line was wet, weighed more than 100 pounds, and had to be carried above his shoulder because of the configuration of the barges. Although Marquette argued that Tisdale’s response to the motion contained a “sham affidavit,” Judge Guidry believed he created a fact issue in light of his unawareness of Marquette’s policy. Accordingly, Judge Guidry denied Marquette’s motion for summary judgment. See May 2024 Update.
Based on the findings of Judge Guidry in the trial on maintenance and cure, Marquette moved for summary judgment on medical causation in the Jones Act and unseaworthiness claims with respect to the L4-L5 and L5-S1 levels—that Tisdale was collaterally estopped from re-litigating medical causation of his claims as they relate to those levels and with respect to the three-level fusion recommended by Dr. Dietze. Tisdale responded that he should not be precluded from establishing that the less invasive surgery at the L3-L4 level (recommended by Dr. Davis) could subsequently and negatively impact levels L4-L5 and L5-S1. Judge Guidry reasoned that he had rejected the testimony of Dr. Dietze that the original accident and injury to the L3-L4 level was the cause of the condition that was later observed at the L4-L5 and L5-S1 levels; however, he was not asked to determine whether the proposed surgery at the L3-L4 level could later impact levels L4-L5 and L5-S1. Therefore, Judge Guidry limited evidence that could be presented regarding the L4-L5 and L5-S1 levels to what future damage might be related to the approved surgery at the L3-L4 level and held that Tisdale was estopped from attempting to establish that the injuries to his L4-L5 and L5-S1 levels were directly caused or aggravated by the original incident.
Marquette and Tisdale then moved to exclude expert opinions. Marquette moved to exclude the expert testimony of Susan M. Bowley and Captain Larry Strouse. Tisdale moved to exclude or limit the expert testimony of Captain Ronald L. Campana. Dr. Bowley is a biomechanical engineer who was engaged to address “injury causation biomechanics.” She opined that the wet rope bundle exceeded the supposed lifting limits in Marquette’s deckhand job description, and the rope, the space in which Tisdale was working, and the wet deck surface were all unsafe conditions that can cause soft tissue damage to the discs in the spine in connection with axial rotation while lifting a wet rope. Marquette argued that the opinions were beyond her expertise and were unreliable, unhelpful, prejudicial, and misleading. Tisdale responded that Dr. Bowley was offering opinions on unsafe conditions and not on maritime safety or medical causation for Tisdale’s injuries. Judge Guidry declined to exclude the testimony, noting that more specific objections would be considered at trial. Marquette objected to the opinions of Captain Strouse on the ground that they conflicted with eyewitness testimony. He opined that the walk area on the barge’s starboard side was very narrow and contained possible tripping hazards, but he acknowledged that the measurements were standard for most hopper barges and Tisdale did not slip, trip, or fall. Captain Strouse also based his testimony on his interview with Tisdale in which he said he twisted his back, but Tisdale testified in his deposition that he felt a “pop” when he shifted the line from one shoulder to the other. Marquette objected to Captain Strouse’s opinion on the safety of the task being performed by Tisdale as it was simply ipse dixit without support from reliable methodology and was without firsthand knowledge. Tisdale noted that Captain Strouse has been certified as a maritime expert in various courts and served as a tow boat captain or pilot, and Judge Guidry believed that his knowledge and experience working as a captain and deckhand would allow him to illuminate aspects of the case that are central to the jury’s understanding of the extent of the care (or absence of care) exercised by Marquette. Tisdale objected to the opinions of Marquette’s expert, Captain Campana, as unreliable and within the ordinary knowledge and experience of jurors. As with his decision on Captain Strouse, Judge Guidry believed that Captain Campana’s testimony based on his experience would be useful to the jury; however, he cautioned that Captain Campana should refrain from commenting on the credibility of witnesses or the weight to be attributed to evidence.
Laura Temple was swimming in Lake Tahoe when she was struck by a boat that she and her colleagues rented. Temple brought a suit in Los Angeles County Superior Court against eight defendants, including boat rental company Action Water Sports of Incline Village, its managers and an employee, Gary Scott, David Ceruti, and E.B., and four colleagues of Temple, Michael Goodwin, Shawn Willette, Zakaria Stour, and Brenda Poot. Action Water Sports moved to transfer that suit to either Placer County or El Dorado County based on the occurrence on Lake Tahoe and the location of witnesses in the Lake Tahoe area. After a hearing, the court transferred the case to Placer County. Shortly after the ruling on the motion (but before the transfer was completed), Temple brought an identical complaint in federal court in California. Action Water Sports and its managers moved to stay the federal suit pursuant to the Colorado River doctrine, and Judge Drozd found five of the factors weighed in favor of granting the stay and two were neutral (none of the factors weighed against granting the stay). Accordingly, Judge Drozd held that it was appropriate for the federal court to defer to the state action, and he granted the stay of the federal suit.
Eulalia Martin-Viana and her family were passengers on the FREEDOM OF THE SEAS. She alleges that she was sitting in a reclining armchair on the balcony of her room when the locking mechanism gave in, causing her to fall backward and strike her head on the sliding glass door. She was flown to a hospital in Tampa, Florida where she underwent surgery on several vertebrae in her neck. Martin-Viana brought this suit against the cruise line in federal court in Florida, seeking compensatory and punitive damages, and the cruise line moved for summary judgment on the grounds that Martin-Viana failed to establish a dangerous condition, failed to establish that the locking mechanism failed, failed to establish that any dangerous condition was open and obvious, and failed to establish notice of any dangerous condition. The cruise line also moved to preclude the testimony of Martin-Viana’s safety, psychiatric, and seating experts, and Martin-Viana moved to strike the opinions of several of the cruise line’s experts. Judge Bloom agreed to strike the late opinions of Dr. Rolando Garcia (with respect to a preexisting degenerative condition) and Dr. Kenneth C. Fischer (with respect to a life care plan). The cruise line argued that Randall Jacques, a Maritime Safety Consultant and Accident Analysis Investigator, had been excluded under Daubert by some courts and provided no reliable methodology for his opinions. Judge Bloom noted that Jacques had been allowed to testify by other judges and that he was qualified by his role as security officer and investigator for several major cruise lines. She also found his re-creation of the incident with scientific equations regarding the weight needed to cause the chair to tip backward was sufficiently reliable, and she declined to strike his opinions. The cruise line objected to the psychiatric opinions of Dr. Richard Seely because they were based on a medical history and intake interviews, notes from his interview with Martin-Viana’s daughter, and a review of the record, without any tests or a proper differential diagnosis using the rule-in, rule-out methodology (in view of her prior anxiety and the cancer diagnosis of Martin-Viana’s daughter). Judge Bloom disagreed, noting Dr. Seely’s forty years of experience treating over 150,000 patients, which gave him the clinical knowledge to make his diagnosis based on his interviews and review of records. The cruise line objected to the opinions of Leonard Backer, who was retained to opine on seating and furniture in hospitality settings as unreliable and unhelpful, noting that he did little more than rely on Jacques’ findings. Judge Bloom answered that his methodology was to review the evidence and apply his more than 33 years of experience in seating design construction, selection, and placement to form his opinions. She found this helpful because he was “uniquely positioned to assist the jury in comprehending the intricacies of proper chair design and its implementation in a cruise ship setting” and in “determining whether the danger posed by the subject chair was open and obvious.” Judge Bloom then considered Martin-Viana’s Daubert objection to the cruise line’s Biomedical, Ergonomic, and Safety Engineer, Dr. Tyler Kress, on the ground that he has never worked in the cruise ship industry or as a safety officer on a vessel and has never worked with furniture design. She also objected to his reliance on CCTV footage of the incident whose quality was so poor that his testimony was conjecture. Judge Bloom did not believe that Dr. Kress’s lack of experience on vessels disqualified him from providing expert opinions, and the soundness of the facts on which he relied was an issue to be considered by the fact finder. Although Judge Bloom declined to allow Dr. Fischer to provide his late opinions on the life care plan, she did allow him to testify as to Martin-Viana’s future medical care, rejecting the argument that the state of her injuries was still unsettled so he could not testify as to her future treatment needs. Judge Bloom then turned to the cruise line’s motion for summary judgment. The cruise line argued, from the CCTV footage and the opinions of two experts, that Martin-Viana moved her body in a manner that caused the chair to tip backward, and that the locking mechanism did not fail. Martin-Viana argued the manufacturer warned the cruise line that the chair was not to be laid flat, but the cruise line did not pass the warning to the passengers and that there was no mechanism to prevent a passenger from lying flat. Additionally, there was no attachment of the chair to the floor to prevent it from tipping over. The cruise line pointed out that the pleading only asserted that the locking mechanism failed when she sat on the chair, but Judge Bloom held that the complaint was sufficient to put the cruise line on notice of the safety of the chair in a flat position, and she held that there was sufficient evidence of a dangerous condition to deny summary judgment. Although the cruise line cited case law granting summary judgment on the open and obvious argument when a patron tipped over in a chair, Judge Bloom found a fact question whether the dangerous condition of the chair was open and obvious because the manufacturer felt compelled to warn of the danger and because the passenger’s experts testified that it was reasonable to use the chair in the flat position. As to notice, the cruise line argued that the warning from the manufacturer that the flat position was for shipping only was insufficient to warn of the possibility of a passenger flipping over in the chair. Judge Bloom agreed that the warning was not explicit enough to rise to notice of an unreasonably dangerous condition; however, Martin-Viana provided expert testimony that cruise lines have thousands of passengers of all ages, weights, sizes, and levels of mobility, and there is a greater need to advise of specific use limits. Thus, Judge Bloom agreed that there was a fact question whether the cruise line had notice. Martin-Viana also moved for summary judgment, arguing that the cruise line had breached its duty to warn. Judge Bloom agreed that there was a failure to warn, but there was still a question whether the condition was dangerous and whether it was open and obvious. Therefore, summary judgment was inappropriate. Judge Bloom did grant summary judgment, however, on the affirmative defenses of failure to mitigate damages and preexisting injuries.
Eduardo Liermo, a citizen of Florida, is the owner of the M/Y VANTAGE, a 72-foot Pershing Sport Motor Yacht that was insured by National Casualty Co., an Ohio company with its principal place of business in Arizona. While the vessel was operating off the coast of The Bahamas, a fire in the engine room caused extensive damage to the vessel. National Casualty Co. declined to consider the vessel a total loss, and Liermo brought this suit against National Casualty in federal court in Florida, alleging breach of the policy in Count 1 plus three counts for negligence in unreasonably adjusting the loss, breach of the duty of good faith and fair dealing, and common law bad faith/bad faith in violation of Florida statute. National Casualty answered the first count and moved to dismiss the other counts based on application of New York law in accordance with the policy’s choice-of-law provision (applying maritime law to the coverage afforded under the policy and New York law in the event there is not a rule of admiralty law). Judge Bloom began with the proposition that the policy’s choice-of-law provision applied to the three counts because they were premised on the coverage dispute between the parties (rejecting the insured’s argument that the claims were based on the insurer’s conduct in its performance under the policy and not on coverage, calling that a “distinction without a difference”). Liermo also argued that Florida law applied, in the absence of maritime law, because the case was brought under the court’s diversity jurisdiction and because maritime law requires application of Florida law. Noting that the choice-of-law provision stated that New York law would apply without regard to any conflict of law principles that might cause the application of another state’s law, Judge Bloom concluded that the counts were governed by maritime law or New York law if there is no maritime rule. Judge Bloom then analyzed the three counts under maritime and New York law. She agreed with National Casualty that maritime law does not address a claim for the adjuster’s negligence in adjusting the claim or for common law bad faith and that New York law does not permit these claims. Therefore, she dismissed the counts for negligent adjusting and for common law bad faith. As to the count alleging breach of the duty of good faith and fair dealing, Judge Bloom noted that maritime law (in all the circuits except the 5th Circuit) recognizes the duty of uberrimae fidei. Liermo argued that uberrimae fidei is a reciprocal obligation binding both insureds and insurers to act in good faith. Although National Casualty argued for application of New York law under the choice-of-law clause, Judge Bloom was not persuaded because the clause provided for application of maritime law. Therefore, she declined to dismiss the count alleging breach of the duty of good faith and fair dealing.
Musashi AZ LLC is the owner of a 2021 47-foot Azimut Verve that it insured with Accelerant Specialty Insurance for an agreed value of $1,850,000. A fire broke out on the vessel while it was docked at MarineMax in Miami, Florida, and Musashi asserted that the fire resulted in a constructive loss of the vessel. Accelerant Specialty declined to pay for the loss, and Musashi brought this suit in federal court in Miami, alleging breach of contract. Accelerant responded with affirmative defenses that Musashi breached the duty of uberrimae fidei so that the policy was void ab initio and that Musashi breached general condition xiii of the policy (nondisclosure or misrepresentation of a fact material to acceptance or continuance of the insurance). Both defenses related to the representation that the vessel was purchased for $2 million when the sale price was $1,575,000. Accelerant Specialty also brought counterclaims seeking declarations that the policy was void for the same breaches. Musashi moved to dismiss the counterclaims on the grounds that they are duplicative of the affirmative defenses and fail to state a cause of action. Judge Smith noted that the court’s jurisdiction over a request for declaratory relief is discretionary and that he could dismiss the request if it was duplicative of the affirmative defenses. However, he answered that resolution of the affirmative defenses would not result in a declaration that the policy was void and save the insurer from future claims on the policy (the counterclaims also included a subscriber to the policy, Lloyd’s, that was not a defendant in the suit). Judge Smith then addressed Musashi’s argument that the counterclaims did not state a claim because they did not address a current controversy (only the past acts) and did not allege that the policy was ambiguous. Judge Smith easily rejected the first argument because Accelerant Specialty sought a declaration that the policy was void from its inception, which would provide relief as to past, current, and future liability under the policy. Therefore, Judge Smith considered the counterclaims to raise a currently justiciable controversy. Turning to the ambiguity argument, Judge Smith cited the case law from federal judges in the Southern District of Florida requiring that there must be an ambiguity in the contract in order for there to be a basis for declaratory relief under the federal or state declaratory judgment acts. As there was no argument that condition xiii of the policy was ambiguous, Judge Smith dismissed that counterclaim. However, the claim based on uberrimae fidei arose under the maritime law and not under the terms of the policy. Therefore, the issue of whether the policy was ambiguous was not relevant to that claim, and Judge Smith declined to dismiss it.
The commercial fishing boat, JOEY D, owned by Oceanside Marine, was fishing for clams off the coast of New Jersey when a deckhand on the vessel, James Schweibinz, picked up a piece of trash that had been hauled on the vessel during the fishing. Schweibinz experienced burns on his arm and was taken to the hospital for treatment (he was diagnosed as having experienced chemical burns from a mustard gas container). Oceanside Marine filed this action in federal court in New Jersey, seeking exoneration/limitation of liability and asked the court to approve the Ad Interim Stipulation of Value and issue the monition. Judge Bumb declined to approve the stipulation or issue the monition, finding inadequacies in the documents filed by Oceanside Marine. First, the owner did not provide security for costs in the amount of $250 as set forth in the local rule. Second, the owner did not give security for interest at the rate of 6% per annum from the date of security. Third, the Ad Interim Stipulation simply stated that the present value of the vessel was $4,500,000 without any explanation of how the value was determined. Fourth, the Ad Interim Stipulation only stated that the insurers would pay up to their policy limits of $5,000,000 (less attorney fees and costs) and that there was another layer of insurance that could be added to the stipulation. Judge Bumb did not consider this to be sufficient (noting additionally that there was an exclusion in the first layer of excess for Chemical, Biological, Bio-Chemical and Electromagnetic conditions). Finally, Judge Bumb noted that Oceanside had not filed a motion requesting issuance of the monition. Accordingly, she declined, without prejudice, to issue the monition or approve the security.
From the state courts
Casey Redmond, who was 22 years old, was working as a deck crewmember on Osage Marine’s tug M/V RAIN MAN and was assigned to help put a barge into a fleet that was being towed by the tug. Redmond’s supervisor stepped onto the barge, noticing that there was cornmeal on the deck that made it slippery. He then heard Redmond’s tools hit the deck, and he heard the splash from Redmond falling into the Mississippi River. The supervisor saw Redmond floating in the river, but his body submerged and was never found. Recovery crews found his life jacket, and the back plate was cut in half. There was nothing in the river that could have caused the cut other than the tug or its propeller. Osage Marine filed a limitation action in federal court in Missouri (with a letter of undertaking in the amount of $2 million) after it was presented with a death certificate from Candace Love, the only surviving parent of its employee Casey Redmond. Love filed a claim in the limitation action as Redmond’s parent and sought to lift the stay as the single claimant. Osage Marine objected that Love did not have standing to bring the claim because the only person entitled to assert the claim is the personal representative of the seaman. Therefore, she lacked standing to lift the limitation stay. Judge Sippel disagreed, stating that Osage Marine’s argument was addressed to the merits. As there was only one claim, Judge Sippel dissolved the stay and held that the entitlement of the claimant and the nature of relief to which she may be entitled could be addressed in the forum of her choosing. See August 2021 Update.
Love then brought this suit against Osage Marine in state court in St. Louis, Missouri, seeking damages of more than $51 million for Redmond’s conscious pain and suffering prior to his death and loss of his economic support and pecuniary services. Redmond lived with his mother in her home, and she testified that he helped keep the house clean, cut the grass, shoveled snow, fixed things around the house, and occasionally contributed $100 or so to help her with the bills. She also testified that he helped her take care of her Type I diabetes. Shortly before trial, Osage Marine declined to contest liability or the right to an award of the elements of damages that are available and proven under applicable law. Love asked the jury to award $31 million, and Osage Marine argued that the award should not exceed $1 million. The jury returned a verdict in the amount of $15 million, and Osage Marine challenged the verdict on appeal to the Missouri Court of Appeals. Writing for the court of appeals, Judge Stevens agreed that Love could recover for Redmond’s pre-death pain and suffering if she could establish that Redmond was conscious after he fell into the river. The evidence established that Redmond stepped onto the deck of the barge wearing a life vest. The supervisor heard his tools bounce on the barge and Redmond fall into the river. Another deckhand saw Redmond floating in the river, and Redmond then went underwater. Love argued that Osage Marine did not prove that Redmond was rendered unconscious or died instantaneously on falling, and Osage Marine’s vice-president of operations conceded that it was likely that Redmond hit the propeller while wearing his life jacket, which killed or maimed him. Osage Marine argued that Love failed to carry her burden of proof as there was a reasonable inference that Redmond simply collapsed and fell into the river unconscious. Judge Stevens agreed that Osage Marine may have a point (citing the rule that a jury may not infer pain and suffering from circumstantial evidence when the evidence gives rise to a number of inferences that are equally probable), except for its pre-trial admission that its negligence and failure to provide a safe workplace (as opposed to a sudden collapse) caused Redmond’s death. Therefore, Judge Stevens declined to set aside the award of pain and suffering. Osage Marine also challenged the award for loss of financial support, asserting that Love failed to adduce sufficient evidence for this element of damages. At trial, Osage Marine argued that Love was not financially dependent on Redmond, but Judge Stevens held that dependency was not required and that what was necessary was a reasonable expectation of pecuniary assistance. Love proved that with the evidence of the work that he performed around the house, the assistance he gave her with her diabetes, and the nominal monetary contributions. As to the amount of the award, Judge Stevens noted the broad discretion given to the jury and reasoned that the amount was not so excessive as to shock the conscience. Osage Marine’s other objections to the evidence, arguments, and submission to the jury were dismissed as multifarious or not preserved for appeal (including the argument that the judgment violated the federal limitation court’s prohibition of entry of judgment). The affirmance of the verdict of $15 million when there is a limitation fund of $2 million will bring the federal proceeding back into play.
Randy Jeandron was killed while transporting a barge loaded with large wooden pilings for a construction project at a location that was only accessible by water in a remote area of Terrebonne Parish, Louisiana. Randy’s daughter, Chelsie, brought suit against Dr. Christopher Cenac, Jr. and Rancho Medico, asserting that the work was being performed for the defendants, and that the defendants either owned or chartered the barge, that the defendants provided equipment for the barge as well as workers to help Randy in the transportation, and that the crane and excavator on the barge were insufficient or inoperable. Thus, one of the workers arranged a block and pulley configuration to offload the pilings, but the chain and tackle snapped, causing the block and tackle to strike Randy in the head. Dr. Cenac moved for summary judgment, citing the exclusive remedy of the Louisiana workers’ compensation statute (asserting that Randy was an employee of Houma Orthopedic Clinic d/b/a Gulf Coast Orthopedics). Dr. Cenac argued that he did not own the barge or property, that the barge was owned by Rancho Medico, and that the property was leased by Rancho Medico from a third party. Judge Bethancourt granted summary judgment to Dr. Cenac, but the court of appeal reversed the summary judgment based on fact questions whether Randy was working in the course and scope of his employment with Gulf Coast Orthopedics at the time of the accident and whether Dr. Cenac was acting in the capacity as owner of Gulf Coast Orthopedics when he engaged Randy to transport and offload the pilings. Rancho Medico, which admitted that it owned the barge and leased the property, also moved for summary judgment, arguing that there was no evidence of unseaworthiness of the barge under the general maritime law or to support strict liability or negligence under Louisiana law. Judge Bethancourt granted summary judgment on the negligence und unseaworthiness claims against Rancho Medico, but he denied summary judgment with respect to the claim of vicarious liability for the negligence of one of the helpers who decided to use the pulley and tackle configuration on the ground that Rancho Medico failed to present evidence to refute the claim that the worker was acting in the course of employment for Rancho Medico. Chelsie appealed the granting of summary judgment, and, writing for the court of appeal, Judge McClendon cited the evidence from the deposition of Dr. Cenac that Randy was the outside handyman for Gulf Coast Orthopedics who was assigned to push the Rancho Medico barge onto the bank and unload the pilings from the barge with a John Deere tractor. However, Judge McClendon reasoned that the evidence did not provide information as to how the accident happened or how the crane on the barge contributed to the accident. Although Dr. Cenac testified that Randy was employed by Gulf Coast Orthopedics, he was sent to perform work involving a barge with a crane owned by Rancho Medico on property leased by Rancho Medico with no apparent benefit for Gulf Coast Orthopedics. Therefore, the court reversed the summary judgment on the claims for unseaworthiness, negligence, and strict liability.
Kenneth G. Engerrand
President, Brown Sims, P.C.
Houston
1990 Post Oak Blvd
Suite 1800
Houston, TX 77056
O 713.629.1580
New Orleans
365 Canal Street
Suite 2900
New Orleans, LA 70130
O 504.569.1007
Gulfport
1110 Cowan Road
Suite B #214
Gulfport, MS 39507
O 228.867.8711
Miami
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Suite 120
Miramar, FL 33027
O 305.274.5507
Quote:
Plaintiff states that he “knows the judicial ‘secret’ of the courts’ criminal statutory jurisdiction,” and he “can prove the law is being blended with equity to make millions or trillions of dollars off of court convictions.” Plaintiff indicates that he has brought similar challenges in four other states. He concludes by stating, “Lawyers are not trusted people! They are part of the nationwide conspiracy!
Ricks v. Kelly, No. 24-3042, 2024 U.S. Dist. LEXIS 67262, at *1-*2 (D. Kan. Apr. 12, 2024) (Lungstrum) (citations omitted).
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