April 2025 Longshore/Maritime Update
April 2025 Longshore/Maritime Update. (No. 311)
Notes from your Updater:
On January 17, 2025, Magistrate Judge Tse of the United States District Court for the Northern District of California declined to dismiss the antitrust claims of commercial fishermen, asserting that Pacific Seafood fixed the price that it and other major buyers of Dungeness crab paid crabbers. See Little v. Pacific Seafood Procurement, LLC, No. 23-cv-1098, 2025 U.S. Dist. LEXIS 28473 (N.D. Cal. Jan. 17, 2025).
On January 31, 2025, Judge Marbley of the United States District Court for the Southern District of Ohio addressed civil and criminal contempt issues arising out of the litigation involving Thomas G. Thompson’s successful location and resurfacing of gold coins, bars, and ingots worth up to $400 million from the S.S. CENTRAL AMERICA, which sank off the Carolina coast in 1857. Judge Marbley terminated Thompson’s incarceration for civil contempt with his fine for civil contempt fixed at $3,335,000, and he ordered that Thompson begin serving a two-year sentence for criminal contempt immediately. See United States v. Thompson, No. 2:15-cr-81, 2025 U.S. Dist. LEXIS 17743 (S.D. Ohio Jan. 31, 2025).
On February 12, 2025, Judge Robart of the United States District Court for the Western District of Washington declined to set aside the settlement entered into between insurers of gold and specie cargo on the S.S. PACIFIC, which sank off the Washington coast in 1875 after colliding with the sailing vessel ORPHEUS, and the company that believes it located the wreck of the PACIFIC (giving the insurers 1.598% of the net proceeds from gold cargo from the wreckage and the salvor 98.402% of the proceeds). See Rockfish, Inc. v. Unidentified Wrecked and Abandoned Vessel, No. 22-cv-1659, 2025 U.S. Dist. LEXIS 26400 (W.D. Wash. Feb. 12, 2025).
On February 13, 2025, the California Court of Appeal rejected the challenge of the Western States Petroleum Association to the California Air Resources Board’s regulation limiting emissions from tankers and other ocean-going vessels while docked or anchored at California ports or terminals. See Western States Petroleum Association v. State Air Resources Board, No. B327663, 108 Cal App. 5th 938, 2025 Cal. App. LEXIS 77 (Cal. App. 2d Div. Feb. 13, 2025) (Stone).
In an Opinion and Decision dated February 26, 2025, the Armed Services Board of Contract Appeals agreed to a reduction of $1,205,586.64 in the contract between the Army Corps of Engineers and AICI-Archirodon JV for the replacement of the Mina Salman Pier in Bahrain because the contractor used a foreign-flagged ship to transport steel piles from South Korea. See Appeal of AICI-Archirodon JV, ASBCA No. 62201-QUAN (Osterhout).
On March 4, 2025, Judge Smith of the United States District Court for the Eastern District of Virginia declined to dismiss the suit brought by the Equal Employment Opportunity Commission against Virginia International Terminals, charging the defendant with discrimination against ILA Local 1248 member Kenneth Skinner, a hustler truck driver, who had suffered a cardiac event that required implantation of a defibrillator. Judge Smith found disputed issues in connection with the adjudication of Skinner’s grievance submitted to the Contract Board in accordance with the collective bargaining agreement. See EEOC v. Virginia International Terminals, LLC, No. 2:24-cv-590 (E.D. Va. Mar. 4, 2025).
On March 11, 2025, Judge Cooper of the United States District Court for the District of Columbia granted summary judgment to Matson, Inc., dismissing the antitrust claims of American President Lines with respect to carriage of cargo between Guam and the mainland of the United States (dominated by Matson). See American President Lines, LLC v. Matson, Inc., No. 21-cv-2040, 2025 U.S. Dist. LEXIS 50503 (D.D.C Mar. 11, 2025).
In our November 2024 Update, we reported that Judge Evanson of the United States District Court for the Western District of Washington agreed with groups challenging the Nationwide Permit issued by the Army Corps of Engineers authorizing installation of structures to be used in finfish aquaculture operations, concluding that the permit failed to comply with the obligations of the Corps under the Rivers and Harbors Act of 1899 and the National Environmental Policy Act. See Don’t Cage our Oceans v. U.S. Army Corps of Engineers, No. 22-cv-1627, 2024 U.S. Dist. LEXIS 177843 (W.D. Wash. Sept. 30, 2024). On March 17, 2025, Judge Evanson agreed to a prospective vacatur of the Permit, requiring that future permits be approved individually. See Don’t Cage our Oceans v. United States Army Corps of Engineers, No. 22-cv-1627, 2025 U.S. Dist. LEXIS 48209 (W.D. Wash. Mar. 17, 2025).
On March 18, 2025, the National Transportation Safety Board issued a report in connection with its ongoing investigation of the allision of the DALI with the Francis Scott Key Bridge, titled Safeguarding Bridges from Vessel Strikes: Need for Vulnerability Assessment and Risk Reduction Strategies. The NTSB urged the Federal Highway Administration, the Coast Guard, and the Corps of Engineers to form a dedicated, interdisciplinary team to provide guidance and assistance to bridge owners on evaluating and reducing the risk of a bridge collapse from vessel allisions. The NTSB also urged the owners of 68 identified bridges to calculate whether the probability of a bridge collapse from a vessel allision is above the acceptable risk threshold established by the American Association of State Highway and Transportation Officials (and, if so, to develop and implement a risk reduction plan). The NTSB made findings that included:
- Had the Maryland Transportation Authority (MDTA) conducted a vulnerability assessment of the Francis Scott Key Bridge based on recent vessel traffic, as recommended by the 1991 and 2009 American Association of State Highway and Transportation Officials (AASHTO) Guide Specifications, the MDTA would have been aware that this critical/essential bridge was above the AASHTO threshold of risk for catastrophic collapse from a vessel collision when the Dali collision occurred.
- Had the Maryland Transportation Association (MDTA) conducted a vulnerability assessment of the Francis Scott Key Bridge using the American Association of State Highway and Transportation Officials’ Method II vulnerability assessment calculation, the MDTA would have had information to proactively identify strategies to reduce the risk of a collapse and loss of lives associated with a vessel collision with the bridge.
On March 19, 2025, the Fifth Circuit affirmed the dismissal of the suit brought by an offshore worker against Shell Exploration, who claimed religious discrimination and retaliation (under Title VII of the Civil Rights Act of 1964) when he objected on religious grounds to a company policy requiring him to be vaccinated against COVID-19. See Spencer v. Shell Exploration & Production Co., No. 24-20173, 2025 U.S. App. LEXIS 6429 (5th Cir. Mar. 19, 2025 (per curiam). However, on March 20, 2025, the Fifth Circuit reversed the dismissal of a suit by Coast Guard servicemembers who argued that the Coast Guard requirement that they be vaccinated against COVID-19 violated their constitutional and statutory rights, despite rescission of the mandate. District Judge Pittman dismissed the suit as moot, but the Fifth Circuit disagreed, citing the declaration from a retired Coast Guard Vice Admiral that the Coast Guard is a “uniquely tight-knit community where service reputation is important for promotions” and the reputation of a servicemember might be tarnished” if there were not a court order declaring the mandate unlawful. See Jackson v. Noem, No. 23-11038, 2025 U.S. App. LEXIS 6557 (5th Cir. Mar. 20, 2025) (opinion by Judge Southwick with a concurrence by Judge Ho and a dissent by Judge Dennis).
On March 28, 2025, the Fifth Circuit affirmed the rejection of challenges of two Native American tribes and a Coastal Bend environmental association, seeking to invalidate the permit issued by the Army Corps of Engineers, permitting expansion of the Moda Ingleside Crude Export Terminal in the Corpus Christi, Texas Ship Channel (constructing five new barge docks, adding a 1,700-foot-diameter turning basis, and building a deep-water ship dock). See Indigenous Peoples of the Coastal Bend v. United States Army Corps of Engineers, No. 23-40555, 2025 U.S. App. LEXIS 7245 (Mar. 28, 2025) (Willett).
On the LHWCA Front . . .
From the federal appellate courts
Ninth Circuit agreed that shipyard worker’s waiver of claims for asbestos exposure on Navy/Coast Guard vessels negated the causal nexus required for removal under the Federal Officer Removal Statute; Long v. Foster Wheeler Energy Corp., 2025 U.S. App. LEXIS 5492 (9th Cir. Mar. 10, 2025) (per curiam).
Richard D. Long claims that he contracted mesothelioma from exposure to asbestos while working at shipyards in Portland, Oregon. He brought this suit in Multnomah County Circuit Court in Oregon against parties who allegedly supplied asbestos products for the ships on which he worked. Defendant Foster Wheeler removed the action to federal court based on the Federal Officer Removal Statute, and Long moved to remand the case to state court, arguing that he waived any claims to which a federal contractor defense could apply (waiving any claims stemming from exposure while working on Navy, Coast Guard, or United States government-commissioned vessels). Foster Wheeler responded that the waiver was ineffective and that the federal court also had admiralty jurisdiction over the suit. Magistrate Judge Armistead held that the explicit waiver was valid, even though it came after removal, and it negated any causal nexus between Long’s claims and the actions taken by Foster Wheeler pursuant to a federal officer’s direction. Adding that the court lacked removal jurisdiction on the basis of original admiralty jurisdiction, Magistrate Judge Armistead recommended that the case be remanded to state court. Judge Immergut adopted the recommendation and ordered that the case be remanded. See April 2024 Update.
Foster Wheeler appealed to the Ninth Circuit, which noted that Long did not challenge that any act performed by Foster Wheeler was done under the direction of the Navy or other military branch. However, the appellate court reasoned that there was no causal nexus between his claims and the actions taken under the direction of a federal officer because he had disclaimed all causes of action for exposures to asbestos dust while he was working on Navy vessels and because he had agreed that the only evidence he would present was for exposure on civilian ships that were not commissioned by the military. Therefore, the court agreed that Judge Immergut did not err in concluding that the federal court did not have jurisdiction under the Federal Officer Removal Statute. The Ninth Circuit also agreed that the district court did not have admiralty jurisdiction, stating that the saving-to-suitors clause “forbids district courts from retaining improperly removed cases based off admiralty jurisdiction,” quoting the Ninth Circuit’s San Mateo decision: “[W]hen a plaintiff brings a maritime cause of action against a person in state court, a federal court lacks admiralty jurisdiction over that claim.” The Ninth Circuit did not cite the contrary reasoning from the Supreme Court in Romero: “All suits involving maritime claims, regardless of the remedy sought, are cases of admiralty and maritime jurisdiction within the meaning of Article III whether they are asserted in the federal courts or, under the saving clause, in the state courts. Romero's claims for damages under the general maritime law are a case of admiralty and maritime jurisdiction.”
From the federal district courts
Application of Kermarec reasonable care duty to offshore platform worker (covered under the LHWCA) who was injured while boarding a vessel, rather than the Scindia duties from Section 5(b) of the LHWCA, resulted in the denial of the motion for summary judgment by the owner and operator of the vessel; Garner v. Quarter North Energy, LLC, No. 23-cv-521, 2025 U.S. Dist. LEXIS 16295 (W.D. La. Jan. 29, 2025) (Joseph).
Michael L. Garner, an employee of Danos, went to Quarter North’s platform located in the South Marsh Island area of the outer Continental Shelf of the Gulf of America off the coast of Louisiana to repair a broken foghorn on the platform. Garner and co-employee Mark Hudson completed the work and were transferring from the platform to the M/V MR. BLAKE, a vessel owned by SeaTran Marine and operated by Alliance Offshore. Hudson successfully transferred to the vessel with a swing rope, and Garner attempted to hand a tool bag to Hudson, Garner grabbed the swing rope with his left hand and leaned out to swing the tool bag with his right hand. A swell caused the MR. BLAKE to move away from the landing on the platform, and Garner felt a burning sensation in his right shoulder. Garner then repositioned himself with his right hand holding the rope and his left hand holding the bag, and he successfully transferred the bag. Garner brought this suit in federal court in Louisiana against Quarter North, alleging negligence under the Outer Continental Shelf Lands Act, and he added SeaTran and Alliance as defendants in an amended complaint. SeaTran and Alliance moved for summary judgment, arguing that there was no negligence on the part of the vessel. Judge Joseph first had to determine what duty was owed by the vessel defendants, as Garner was covered by the LHWCA as a worker on a platform in the Gulf of America. The vessel defendants argued that the Scindia duties were applicable to a suit by a longshore worker against a vessel under Section 5(b) of the LHWCA, but Judge Joseph disagreed. He reasoned that the nature of the relationship between Garner and the MR. BLAKE was as a passenger. Therefore, he concluded that the Kermarec duty of reasonable care was applicable. Applying that standard, Judge Joseph believed that the vessel defendants’ reliance on the ordinary sea conditions (3-4 foot seas) was misplaced. He noted that Garner’s claim was based on the duty to ensure safe ingress to the vessel taking into consideration that the height of the landing on the platform was two or three feet lower than a typical “plus five” landing. Garner argued that the proper way to ensure safe ingress in this situation was for the captain to hold the vessel against the platform by reversing his engines so that the swell would not have pushed the boat away from the platform. It was the height of the platform combined with the distance from the boat that caused Garner to have to extend outward and upward, resulting in his shoulder injury. Although the captain argued that he had never in the past backed the vessel until its tires came in contact with the platform and that the maneuver would likely damage the boat or platform, Judge Joseph held that there was a fact question for which he denied summary judgment to the vessel defendants.
Offshore platform worker injured on vessel was not a seaman, and his unseaworthiness claim was dismissed; Lopez v. Quality Construction & Production, LLC, No. 20-250, 2025 U.S. Dist. LEXIS 21980 (M.D. La. Feb. 8, 2025) (Jackson).
Rolando Lopez was employed by Quality Construction as a rigger to perform work on a Talos Energy platform that was located on the outer Continental Shelf of the Gulf of America, offshore Louisiana. He ate and slept on the M/V ISABELLA ROSE, and he slipped and fell on the vessel while walking to the mess hall. Lopez brought this suit in Louisiana state court against his employer, Quality Construction, and the charterer of the ISABELLA ROSE, C&G Boats, asserting that he was a Jones Act seaman. Quality Construction removed the case to federal court in Louisiana, arguing that Lopez was covered under the LHWCA, as extended by the Outer Continental Shelf Lands Act (and was not a seaman) and asserting that there was federal jurisdiction under the OCSLA. Lopez argued that the court did not have jurisdiction under the OCSLA because he was off duty at the time of the incident. Magistrate Judge Wilder-Doomes rejected the argument, and Judge Jackson agreed. He cited the Supreme Court’s decision in Valladolid in which the Court held that the OCSLA applied when the employee’s injury occurred as the result of extractive operations conducted on the OCS. In this case, Lopez “was engaged in offshore operations that qualify for OCSLA jurisdiction, and his injury on a vessel attached to an offshore platform occurred ‘as a result’ of those operations.” As Lopez would not have been injured but for his employment to work on the platform to which his vessel was moored, Judge Jackson agreed that the case fell within the scope of the OCSLA and removal was proper. Judge Jackson then addressed the motion of the owner of the M/V ISABELLA ROSE for summary judgment on Lopez’s Jones Act claim against the vessel owner based on the evidence that Lopez performed his work almost exclusively on fixed platforms. Lopez responded that the court should remand the case instead of ruling on the merits, but Judge Jackson granted summary judgment, dismissing the Jones Act claim, as Lopez failed to contest the substance of the argument presented by the owner. See May 2024 Update.
The defendants moved for judgment on the pleadings, seeking dismissal of the unseaworthiness claims. Lopez opposed the motion, explaining that he would not pursue the unseaworthiness claims so long as the court’s ruling on his seaman status under the Jones Act “remains binding on the parties.” As the unseaworthiness claims were left “untethered to any legal authority to which he could be afforded relief,” Judge Jackson dismissed the unseaworthiness claims.
Worker injured on platform was an invitee of the platform owner, and the waiver of subrogation with respect to LHWCA payments in the contract between the platform owner and employer was not invalidated by the LOIA as the platform owner was not seeking indemnity; however, the LHWCA carrier still had the right to an offset from the net recovery; Landry v. ABC Insurance Co., No. 20-cv-1009, 2025 U.S. Dist. LEXIS 23906 (W.D. La. Feb. 10, 2025) (Hicks).
Duane Landry, an employee of Sparrows Offshore, was injured while working on the outer Continental Shelf of the Gulf of America in Ship Shoal Block 178, off the coast of Louisiana, on a platform owned by Fieldwood Energy. Landry brought this suit in federal court in Louisiana against Fieldwood Energy, asserting claims under Louisiana law and Section 5(b) of the LHWCA. In his amended complaint, Landry named as a defendant Zurich American Insurance Co., the LHWCA insurer for Sparrows Offshore, seeking to enforce the waiver of subrogation in the Master Services Contract between Fieldwood and Sparrows Offshore. Landry/Fieldwood and Zurich filed cross-motions for summary judgment on the validity of the waiver of subrogation under the Louisiana Oilfield Indemnity Act, and Judge Hicks reviewed the provision of the contract, which required that Sparrows Offshore obtain a waiver of subrogation for members of the “Company Group,” which included invitees of Fieldwood. Judge Hicks concluded that Landry was an invitee of Fieldwood as he was on the platform at the invitation of Fieldwood for the financial benefit of both Fieldwood and Sparrows Offshore. He then considered the effect of the LOIA and explained that the statute voids a waiver of subrogation “only when the oil company pursues both the waiver of subrogation and indemnification.” As Fieldwood was not seeking indemnification and only the waiver of subrogation, the waiver was not voided by the LOIA. Therefore, Judge Hicks granted the motion of Fieldwood/Landry with respect to Zurich’s right to subrogation. However, Judge Hicks noted that the Fifth Circuit has held that the waiver of subrogation does not affect the LHWCA carrier’s right to an offset in the LHWCA claim from the worker’s net recovery. Consequently, Judge Hicks held that “Zurich may still possess an independent statutory right entitling it to reimbursement.”
Maritime claim under Section 5(b) of the LHWCA for OCS injury was removable under the OCSLA, despite the saving-to-suitors clause; second suit involving Jones Act claim was removable under the OCSLA, but the Jones Act claim was severed and remanded to state court; Peralta v. Supreme Offshore Services, Inc., No. 23-1395 c/w No. 23-3073, 2025 U.S. Dist. LEXIS 29058, 29072 (E.D. La. Feb. 19, 2025) (Papillion).
Opinion Monforte/Supreme Offshore
Adi Raibstein Peralta was employed as a plug-and-abandon helper to perform work on Monforte Exploration’s Ship Shoal 291A platform located on the outer Continental Shelf of the Gulf of America off the coast of Louisiana. The workers were ordered to abandon the platform because of inclement weather, and Peralta was injured when swinging from the platform to the M/V WARREN THOMAS, which he alleged was operated by his employer, Supreme Offshore Services. Peralta brought suit in state court in Jefferson Parish, Louisiana against Supreme Offshore Services and Monforte Exploration, asserting claims as a seaman under the Jones Act and general maritime law as a member of the crew of the WARREN THOMAS. Peralta filed an amended petition in the state court, alleging that he was employed by Supreme Service & Specialty Co., removing the allegation that he was a crew member of the WARREN THOMAS, and replacing his allegation against Supreme Offshore with a claim for vessel negligence pursuant to Section 5(b) of the LHWCA. Monforte Exploration removed the case to federal court in Louisiana based on the jurisdiction from the Outer Continental Shelf Lands Act, and Peralta moved to remand the case on two grounds. He contended that OCSLA jurisdiction did not extend to his suit because his injury did not occur on an OCSLA situs. He also argued that he brought maritime claims that were not removable because of the saving-to-suitors clause and that should be severed and remanded to state court. Judge Papillion rejected Peralta’s first argument, noting that the Fifth Circuit has held that the test for OCSLA jurisdiction does not contain a situs requirement and instead requires that the injury arise out of an oil and gas operation on the OCS. He concluded that “P&A work, which ‘involves the decommissioning of oil and gas wells,’ falls within this wide range of oil and gas activity over which OCSLA jurisdiction applies” and that “Peralta would not have sustained his injuries ‘but for’ the P&A work he was performing on the Platform.” Turning to the argument that the saving-to-suitors clause prevented removal of the maritime claims, Judge Papillion noted that the Fifth Circuit had upheld removal of maritime claims under the independent jurisdictional basis of the OCSLA, despite the saving-to-suitors clause. He also rejected application of the Landerman case from the federal court in Louisiana as that case actually upheld removal of maritime claims under the OCSLA. The court in that case severed and remanded a Jones Act claim that was not removable, but Peralta eliminated his Jones Act claim in the present suit, substituting a claim under Section 5(b) of the LHWCA. That claim was removable under the OCSLA, despite the saving-to-suitors clause. Therefore, Judge Papillion denied the motion to remand.
On the same day that Peralta filed his motion to remand the first suit, he filed a second suit that only named his employer, Supreme Service. The action was brought as a seaman and alleged claims under the Jones Act and general maritime law. Supreme Service removed that suit to federal court in Louisiana based on jurisdiction under the OCSLA, arguing that the Jones Act claim was fraudulently pleaded to prevent removal. Peralta moved to remand the case for the same reasons as in the Monforte/Supreme Offshore suit, and Judge Papillion rejected the arguments for the same reasons as discussed above. Judge Papillion then turned to the argument that the Jones Act case should not be severed and remanded because it was fraudulently pleaded to avoid federal jurisdiction. Judge Papillion recognized the Fifth Circuit’s procedure for piercing the plaintiff’s pleadings to determine if the Jones Act claim was fraudulently pleaded; however, he declined to invoke that procedure, concluding that the language in the removal statute providing for severing and remanding non-removable claims was mandatory. Accordingly, he held that the second suit was properly removed, but the Jones Act claim would be severed and remanded to state court.
Indemnity provision in Purchase Order (under which a contractor worked for a shipyard) applied in connection with the injury to an employee of the contractor; maritime law enforced choice of Virginia law, and the indemnity was written sufficiently to encompass the negligence of the shipyard even though the agreement did not mention negligence; undefined term “third parties” in the indemnity agreement was ambiguous, and the jury would have to determine whether an employee of the contractor was a third party; Parfait v. Swiftships, LLC, No. 21-cv-2152, 2025 U.S. Dist. LEXIS 30119 (E.D. La. Feb. 20, 2025) (Vitter).
Blaine Parfait was employed by Coating Services as a painter/foreman to work on a job for Swiftships’ shipyard in Amelia, Louisiana, along the Avoca Island Cutoff. Parfait was below deck, inspecting the paint job performed on piping on the LCU 2026, a vessel that was docked at Swiftships’ shipyard. Parfait fell through an open hatch that had been opened by an employee of Swiftships without any warnings. He was paid benefits under the LHWCA by the compensation carrier for Coating Services. Parfait brought this suit in federal court in Louisiana against Swiftships, seeking to recover for negligence under Section 33(f) of the LHWCA and the general maritime law. Swiftships moved for summary judgment, arguing that it did not owe a duty to warn an experienced worker like Parfait of the open and obvious condition of the hatch, comparing the duty it owed to the duty owed by vessel owners to injured longshoremen under Section 5(b) of the LHWCA. Judge Vitter responded that Swiftships did not cite any legal authority that the exception applicable to a vessel owner’s duty to warn of hidden or latent dangers applies to non-vessel owners like Swiftships. She added that the Fifth Circuit had rejected application of the Scindia duties to a loading stevedore in a suit by an employee of a discharging stevedore. Therefore, she declined to hold that the open and obvious nature of a dangerous condition would be a defense to the suit against the shipyard. Instead, Judge Vitter held that Swiftships owed Parfait a duty of ordinary care under the circumstances. Thus, the question was whether the injury suffered by Parfait was reasonably foreseeable from the failure to warn of the open hatch. As there was evidence that Parfait was not aware that the hatch was open and that his view of the open hatch was partially obstructed by a Swiftships employee, Judge Vitter found a fact question whether Swiftships had a duty to warn Parfait that required denial of the motion for summary judgment. See October 2024 Update.
Swiftships asked Judge Vitter to certify her decision for an interlocutory appeal, arguing that the issue of whether a non-vessel owner has a duty to warn of an open and obvious condition on a vessel presents a controlling question of law that is a “novel issue of first impression in the Fifth Circuit.” Swiftships argued that a controlling question of law was presented because Swiftships was not liable for the open and obvious condition. Judge Vitter rejected the argument, however, as there was a question whether the condition was open and obvious. Thus, even if the Fifth Circuit agreed that Swiftships did not have a duty to warn an experienced worker of an open and obvious condition, the appellate court would still have to remand the case to determine if the condition was open and obvious (and whether Parfait was an experienced worker). And, if the appellate court decided that Swiftships did have a duty to warn of an open and obvious condition, the case would have to be remanded for trial. Judge Vitter also disagreed with Swiftships that there was a substantial ground for difference of opinion over the controlling question of law. She believed that there was precedent from the Fifth Circuit (Crouch) that the Scindia duties do not apply to non-vessel owners, and she distinguished the Peters case from the Ninth Circuit that was cited by Swiftships (although Judge Vitter noted that the Ninth Circuit did find the Scindia principles to be “instructive” on the liability of non-vessel owners). Therefore, she declined to certify her decision on the duty owed by Swiftships for an immediate appeal. See January 2025 Update.
Swiftships filed a third-party claim against Parfait’s employer, Coating Services, seeking defense and indemnity based on the provisions of a Purchase Order governing the work performed by Coating Services. Coating Services argued that there was no contract between the parties because it did not sign the Purchase Order, and that the language of the indemnity provision was not written sufficiently to require Coating Services to indemnify Swiftships from its own negligence under the clear-and-unequivocal standard in the maritime law or under Virginia law (based on the choice-of-law provision in the Purchase Order). Coating Services also argued that the provision only required defense and indemnity for injuries sustained by a “third party,” an undefined term, and that Coating Services was not a third party. Judge Vitter found that the terms of the Purchase Order were applicable to Coating Services because the Purchase Order provided that the furnishing of services by the supplier constituted an acceptance of the terms of the Purchase Order. As the services performed under the Purchase Order were maritime, and as maritime law enforces choice-of-law provisions, Judge Vitter applied Virginia law to the indemnity provision. The indemnity clause required Coating Services to indemnity Swiftships from any and all liability, damages, losses, and claims that relate to, arise out of, or are asserted or incurred as a result of bodily injury sustained by any third parties arising in any manner in connection with the activities carried out by Coating Services. Judge Vitter considered the “any and all” language to be inclusive with no exception for liability resulting from Swiftships’ negligence. Therefore, she held that it applied to the negligence of Swiftships. She also held that the indemnity did not violate Virginia public policy. However, Judge Vitter believed that the term “third party” is ambiguous because it is subject to two reasonable interpretations. It could mean any party other than Coating Services so that Parfait would be a third party. Or, it could be read to exclude employees of Coating Services and Swiftships as the Purchase Order draws a distinction between employees and third parties. Therefore, she held that the jury would determine the meaning of the term “third parties.”
From the state courts
Purchase and charter of vessel after the accident by entities that are related to the owner and charterer at the time of the accident was insufficient to give the court personal jurisdiction over the entities that did not own or operate the vessel at the time of the injury; Red Box Energy Services Pte. Ltd. v. Buck, No. 09-23-00386, 2025 Tex. App. LEXIS 281 (Tex. App.—Beaumont Jan. 23, 2025) (Wright).
William Buck, who was employed as a fire watch by Biehl International, was injured on the vessel AUDAX while the vessel was docked at the Port of Beaumont, Texas, delivering heavy refinery equipment to ExxonMobil. At the time of the accident, the AUDAX was owned by Fortune Haumea Holding Co. and operated by ZPMC-Red Box Energy Services Ltd. under a bareboat charter. Shortly after the accident, Fortune Haumea notified ZPMC-RB of its intent to terminate the bareboat charter and to auction the AUDAX to the highest bidder. Red Box Energy Logistics Pte., a Singapore company, purchased the AUDAX at a foreclosure auction for $60 million. Red Box Energy Logistics Pte. then sold the AUDAX to Fortune MC Hercules Shipping, which bareboat chartered the AUDAX to Red Box Energy Logistics. Buck brought this suit in state court in Jefferson County, Texas against his employer Biehl International, ExxonMobil, Fortune Haumea and ZPMC-Reb Box Energy Services (the owner and operator of the AUDAX at the time of the injury), and Fortune MC Hercules Shipping and Red Box Energy Logistics (the current owner and operator of the AUDAX), along with RBES B.V., an affiliate of Red Box Energy Logistics. Red Box Energy Logistics and its affiliate RBES B.V. filed a special appearance, requesting dismissal of the suit against them for lack of personal jurisdiction. They argued that there is no general jurisdiction against them because they are foreign corporations that do not have offices, operations, bank accounts, employees, or assets in Texas, and that there is no specific jurisdiction against them because Red Box Energy Logistics did not gain control of the AUDAX until after the injury. Buck argued that the newly formed entities were intertwined with the entities that owned/operated the AUDAX at the time of the accident and involved the same people who previously owned/operated the vessel. District Judge Walston denied the special appearance, and the defendants filed an interlocutory appeal to the Texas Court of Appeals in Beaumont. Writing for the court of appeals, Justice Wright explained: “Texas law presumes that two separate corporations are distinct entities, and a party seeking to ascribe one corporation’s actions to another by disregarding their distinct corporate entities must prove this allegation. He added that it is entirely appropriate for directors of one corporation to serve as directors of a subsidiary and that the only evidence of contacts with Texas for the appellant defendants was the payment of an invoice from Biehl made out for payment by “Red Box Energy Services.” As there was no evidence that the payment was related to Buck’s accident, Justice Wright concluded that the district court did not have jurisdiction over the appellant defendants, and the court of appeals ordered their dismissal from the suit.
Appellate court affirmed decision to exclude the opinions of the liability expert for an injured longshore worker with respect to maintenance and inspection of the truck in which the worker was injured and the summary judgment granted in the absence of expert testimony; Johnson v. Terminal Investment Corp., Nos. A24A1576, A24A1650, 2025 Ga. App. LEXIS 60 (Ga. App. 4th Div. Feb. 19. 2025) (Dillard).
Isaiah Johnson, a longshore worker employed by Ceres Shipping, went to the Terminal Investment Corp. facility at the Garden City Terminal in Savannah, Georgia to pick up a jockey truck that had been recently serviced. While driving the truck to pick up a container from a ship, the truck struck a pothole in the roadway, and the cab of the truck separated from the chassis. Johnson lost control and was injured. Johnson filed suit in Georgia state court against Terminal Investment, alleging that it was negligent in its failure to maintain and inspect the cab latching mechanism and brakes of the jockey truck. Terminal Investment filed a motion for summary judgment, contending that there was no evidence of any defect in the truck (or knowledge of any defect), and Johnson responded with an affidavit from James Keough, a mechanical engineer with experience in design and development of special trucks, including terminal trucks, who opined that the accident was a result of the truck’s cab latch and brakes failing to function properly. Terminal Investment moved to exclude the opinions, and the judge held that Keough was qualified to testify regarding the latching mechanism and how it could have failed; however, the judge held that Keough’s methodology lacked evidentiary support with respect to the brakes. The judge also ruled that Keough was not qualified to offer opinions whether the maintenance and inspection routine for the latching mechanism or brakes failed to comply with the industry standard of care. The court then granted summary judgment, ruling that Terminal Investment had shown that it exercised ordinary care to ensure that the truck was in safe condition. Johnson appealed the rulings excluding the expert opinions of Keough, and the Court of Appeals affirmed the decisions. Writing for the court, Judge Dillard noted that the lower court had held that Keough was qualified to provide opinions on causation, but he did not have knowledge of how the Terminal Investment mechanics performed their inspection and maintenance. He opined that the latching mechanism and brakes should have been inspected but likely were not, but Terminal Investment submitted evidence that the truck was inspected four days before the accident and on the morning of the accident, with no evidence of any malfunction (the inspection on the morning of the accident lasted more than two hours). Accordingly, the appellate court held that the lower court did not abuse its discretion in holding that Keough could not opine on the standard of care required of the maintenance mechanics. The appellate court added that the excluded opinions were based on speculation, untethered to any discernible methodology. Judge Dillard then addressed whether summary judgment was proper, citing the duty of a bailor to exercise ordinary care to inspect the bailed article before delivery to ascertain if it is in a reasonably safe condition. As his expert testimony was excluded, Johnson argued that the jury could determine the standard for inspection and whether it was satisfied. Judge Dillard disagreed, holding that the issue whether the mechanics failed to comply with the standard of care for inspection and maintenance of the truck was beyond the ken of ordinary laypersons. Finally, Johnson argued that there should be an adverse presumption because Terminal Investment failed to keep detailed records of inspections. However, there was no evidence that Terminal Investment possessed records and destroyed them or that it acted in bad faith. Therefore, Johnson was not entitled to any adverse presumption sufficient to defeat summary judgment. Accordingly, the appellate court affirmed the evidentiary rulings and the grant of summary judgment.
And on the maritime front . . .
From the federal appellate courts
Fact questions as to passenger’s ignorance of the contents of a release signed before a boating excursion resulted in reversal of summary judgment enforcing the release; Thompson v. Over the Line VI LLC, No. 23-3110, 2025 U.S. App. LEXIS 1963 (3d Cir. Jan. 28, 2025) (Chagares).
Christine Thompson and five family members and friends were engaged in a recreational boating and snorkeling excursion in the waters of St. Thomas and St. John. They chartered a powerboat from Over the Line VI that was captained by Jordan Maupin. Prior to boarding, Maupin handed the passengers a clipboard with a form contract releasing Over the Line and its agents from liability for injuries sustained during the excursion. The document was on a single page (front and back) and was titled in bold text at the top of the page: “GENERAL RELEASE OF ALL CLAIMS.” The front page provided in bold type that the Releasor released Over the Top and its agents “whether caused by the negligence of the Releasees or otherwise.” The back page of the document also contained the title in bold text at the top of the page: “GENERAL RELEASE OF ALL CLAIMS (CONTINUED).” The rest of the back page was blank lines for the signatures, printed name, and address. The passengers testified that they only saw the blank lines, because the back page of the document was facing forward on the clipboard and the clip covered the title. The passengers also testified that they were told to sign the document to provide their contact information. All of the passengers signed the document, and Thompson was injured when the vessel crashed against a wave that dislodged Thompson from her seat. Thompson brought this suit in federal court in the Virgin Islands, asserting claims of negligence and gross negligence against Over the Line and Maupin. Chief Judge Molloy granted summary judgment to the defendants on the negligence claim, concluding that the release was enforceable as a matter of law because Thompson had sufficient time to review the document and had the opportunity to remove the clip covering the top of the second page. The gross negligence claim was tried to a jury, which found in favor of Over the Line and Maupin. Thompson then appealed to the Third Circuit, arguing that Chief Judge Molloy should not have granted summary judgment on the enforceability of the release. Writing for the Third Circuit, Chief Judge Chagares began by agreeing that admiralty law applied to the dispute because it involved a boating accident on navigable waters with the potential to disrupt maritime commerce and involved an excursion with a substantial relationship to traditional maritime activity. Chief Judge Chagares then held that the release clearly and unequivocally released Over the Line and Maupin and that it was not a contract of adhesion because Over the Line “offered purely recreational services and was not a monopoly.” Thompson’s challenge focused on how the release was presented, arguing that Thompson had no reason to suspect she was doing anything other than providing her name and contact information—a claim of ignorance of the contents of the writing that is known as “fraud in the execution” or “fraud in the factum.” Chief Judge Chagares explained that this claim did not require an affirmative intent to defraud; instead, Thompson would have to establish that her ignorance of the contents of the release was reasonable. Although the defendants argued that failure to read the document does not create a fact question as to the enforceability, Chief Judge Chagares found sufficient evidence that there was not an outward expression of assent where there was evidence that the offeror “misrepresented the contents of the agreement” or “tried to hide” key provisions. Chief Judge Chagares was careful to state that the court was not holding the release was unenforceable as a matter of law, only that there were fact disputes that should have been left to the factfinder.
Fifth Circuit agreed that P&I insurer established the insured’s and the additional insured’s breach of the policy by late notice and prejudice, and that extended to defense costs incurred by the insured and additional insured; Champagne v. A&T Maritime Logistics Inc., No. 23-30078, 2025 U.S. App. LEXIS 2491 (5th Cir. Feb. 4, 2025) (Elrod).
Robert M. Champagne, III and Elizabeth G. Champagne, owners of waterfront property in Houma, Louisiana, brought this suit seeking to recover for damage to their concrete bank cover when it was struck by the M/V UNCLE JOHN, owned by Alexis Marine and operated by A&T Maritime. The action was brought in personam against the owner and operator of the vessel and in rem against the UNCLE JOHN. After the Marshal arrested the vessel, the Champagnes moved to appoint their contractor, Sea Sales, as substitute custodian for the vessel, and the court granted the motion and permitted the movement of the vessel within the district. Sea Sales engaged a towing contractor, and the vessel was damaged during the tow. Sea Sales paid for repair to the vessel, but the vessel owner brought a counterclaim against the Champagnes in the event there was additional damage or if the repairs were done improperly. The Champagnes moved to dismiss the counterclaim, and Judge Zainey agreed, noting that there were no allegations that the Champagnes acted negligently in hiring Sea Sales and that there was no authority in the maritime law that would make an arresting creditor liable for the acts of the substitute custodian simply by hiring it. Judge Zainey also found meritless the argument that the hold harmless agreement, signed by the Champagnes in favor of the United States and the Marshal, inured to the benefit of the owner of the arrested vessel. The owner of the vessel did not have insurance for the vessel and did not post security for the vessel in the five months after it was arrested. That resulted in a flurry of motions: the charterer seeking payment of defense costs from its P&I carrier, the owner seeking a release of the vessel without posting security, and requests to set the amount of security and for an interlocutory sale. The charterer’s P&I insurer argued that there was no coverage under the policy because the policy named the UNCLE BLUE, not the UNCLE JOHN. The charterer argued that the owner substituted the UNCLE JOHN after the UNCLE BLUE became inoperable, and the Automatic Attachment Clause in the policy continued coverage for the UNCLE JOHN. However, the insurer did not learn of the substitution or the allision until almost a year after the casualty, despite the reporting requirement in the policy. Citing the eight-corners rule for interpreting the duty to defend, the charterer argued that the insurer should reimburse the charterer’s defense costs with respect to the suit. The carrier responded that the P&I policy did not contain a duty to defend and that a decision on whether it had a duty to reimburse defense costs was not subject to the eight-corners rule and necessitated a decision on coverage and on the defenses that were asserted. Judge Zainey agreed that the eight-corners rule was inapplicable and that the obligation to cover the claim was not separate from the duty to reimburse the insured for defense costs. Therefore, the coverage issues would have to be fully presented to the court. Judge Zainey then considered the motion to release the vessel and for its interlocutory sale. Judge Zainey reasoned that the owner was laboring under a “fundamental misunderstanding of the nature of in rem proceedings against the vessel’s owner.” The charterer may have been operating the vessel at the time of the allision, but the plaintiffs arrested the vessel to assert a maritime lien against the vessel as a tortfeasor. The in rem claim is separate from the in personam claims against the owner and charterer. The plaintiffs were not “persecuting” the owner for its lack of financial ability to post security. They were enforcing their maritime lien for payment of damages caused by the vessel. The arrest and sale of the vessel might cause a financial hardship on the owner, but “the sole party responsible for that unfortunate circumstance” was the owner who did not properly insure the vessel. Therefore, Judge Zainey would not release the vessel without security. Judge Zainey declined to hold a hearing to determine the value of the vessel as it would appear to be an “exercise in futility” with the owner giving no indication that it was willing or able to post security regardless of the value that the judge might assign to the vessel. Judge Zainey gave the owner 30 days either to post security or reach agreement with the plaintiffs, after which the plaintiffs could move to have the vessel sold at an interlocutory sale. See September 2021 Update.
Settlement was reached with the Champagnes, and the UNCLE JOHN was released to Alexis Marine. The focus of the litigation then turned to the claims of Alexis Marine and A&T Maritime against RLI Insurance Co. pursuant to a marine insurance (hull and P&I) policy. A&T Maritime purchased the policy, which covered vessels listed on a schedule. When the policy was purchased, A&T chartered the UNCLE BLUE, and that vessel was named on the schedule. Later, the UNCLE JOHN was substituted so that the UNCLE BLUE could obtain repairs, but the UNCLE JOHN was not listed on the schedule for the insurance. Thus, when the allision occurred, the UNCLE JOHN was not named on the schedule, and Judge Zainey held that the UNCLE JOHN was not covered unless it was through the Automatic Attachment Clause (extending coverage to additional vessels acquired by the assured by purchase or bareboat charter). RLI argued that the clause only applied to additional vessels and that the UNCLE JOHN was a substituted vessel, not an additional vessel. Judge Zainey disagreed and held that the UNCLE JOHN was automatically covered by the clause. RLI also argued that the clause required the assured to report the additional vessel as soon as practicable and that RLI did not learn about the UNCLE JOHN until the lawsuit was filed, which was long after the policy had been cancelled. At that point, RLI argued, it was too late to add a vessel because the policy was no longer in existence. Judge Zainey disagreed, reasoning that the coverage attached automatically, not when notice was provided. He then turned to the argument that several policy warranties on notice were violated (requiring notice to RLI as soon as practicable after a loss). Judge Zainey agreed that the notice provisions were breached and that RLI had established actual prejudice by the increase in the amount for which the case settled. The final issue was the remedy for the assured’s breach of the policy warranties. Judge Zainey did not believe that voiding of all coverage was appropriate in the absence of language to that effect in the policy. Therefore, he granted partial summary judgment to RLI but held that the parties could file a narrower motion for summary judgment as to the appropriate remedy for the breach of warranties and the prejudice sustained by RLI as a result. See November 2022 Update.
RLI took Judge Zainey’s suggestion and filed a motion for summary judgment, arguing that a complete denial of coverage, not a lesser remedy was appropriate, citing cases from the Fifth Circuit holding that an insurer cannot deny coverage merely because the insured failed to give notice of a loss as soon as practicable but holding that coverage may be denied if the insurer shows actual prejudice based on the failure to receive notice as set forth in the policy. Although A&T Marine submitted an affidavit to try to avoid the prior finding of prejudice, Judge Zainey held that it was insufficient to cast doubt on the finding that it cost far more to litigate and conclude the case than what RLI could have resolved the case for in 2020 had it been given notice of the allision in accordance with the policy. Accordingly, A&T Marine’s claims against RLI were dismissed. See February 2023 Update.
A&T Marine appealed to the Fifth Circuit, and, writing for the court, Chief Judge Elrod noted that the parties agreed that Louisiana law would govern the interpretation of this marine insurance policy in the absence of a general maritime rule (Wilburn Boat). Under Louisiana law, the insurer was required to demonstrate actual prejudice resulting from delayed notice in order to deny coverage on that ground. A&T Maritime argued that there was no prejudicial late notice when the insurer had a full opportunity to participate in the defense of the suit and that RLI had notice of the lawsuit since its inception with a full opportunity to participate in the defense of the lawsuit. Chief Judge Elrod did not find support for that argument in the cases, which turned on whether there was a showing of actual prejudice. Therefore, she addressed whether RLI was prejudiced, and she found sufficient evidence of prejudice. Chief Judge Elrod noted that “A&T Maritime sat on the potential claim and did nothing to prevent the initial damage caused by the allision from worsening.” This was not a situation in which the damage had been repaired so that the insurer’s interests had been otherwise protected (“Here, nobody looked out for RLI’s interests.”). Chief Judge Elrod explained that A&T Maritime’s inaction allowed the damage to increase, and RLI lost the opportunity to settle for $3,500 a claim that ultimately settled for $200,000. Accordingly, RLI properly denied coverage to A&T Maritime. Chief Judge Elrod then addressed whether coverage was properly denied to Alexis Marine, which claimed that it was an additional insured under the P&I policy. Alexis Marine cited the Cross Liabilities Clause and claimed that the failure of A&T Maritime to give notice had no impact on the coverage for Alexis Marine and that Alexis Marine was entitled to be treated as though it had its own policy. Chief Judge Elrod disagreed, answering that the Cross Liabilities Clause was inapplicable because the clause only provided “coverage for claims emanating from disputes between assureds” and A&T Maritime brought no cross-claim against Alexis Marine. And, even though Alexis Marine argued that it had independent coverage under the clause giving “Privilege to Name Additional Insureds,” Chief Judge Elrod concluded that RLI was actually prejudiced by late notice from Alexis Marine. Alexis Marine had been notified about the allision but had failed to provide notice to RLI while the damage to the embankment was worsening and when RLI would have had the opportunity to settle. Therefore, RLI had the right to void the policy for late notice. Finally, A&T Maritime and Alexis Marine argued that RLI was required to reimburse their defense costs as they were incurred; however, Chief Judge Elrod disagreed, noting that P&I policies do not ordinarily create a duty to defend like liability policies. Instead, the duty to indemnify defense costs depends on coverage under the policy. Chief Judge Elrod explained: ‘Thus, if there is no coverage under the policy, there is no reimbursement for defense costs.” As A&T Maritime and Alexis Marine did not have coverage because of the late notice, “RLI has no duty to indemnify them for the costs they incurred in defending those claims.”
Eleventh Circuit affirmed verdict in favor of purchaser of vessel for breach of the implied warranty of merchantability under the Magnuson-Moss Warranty Act; Horowitz v. Allied Marine, Inc., No. 24-12445, 2025 U.S. App. LEXIS 6749 (11th Cir. Mar. 24, 2025) (per curiam).
This case calls to mind the sage words of Judge Reynaldo Garza of the Fifth Circuit: “They say that the two happiest days of a yacht owner's life are the day he buys it and the day he sells it.” Jones v. One Fifty Foot Gulfstar Motor Sailing Yacht, 625 F.2d 44, 45 (5th Cir. 1980).
Kenneth Horowitz executed a Purchase and Sale Agreement with Ferretti Group of America to buy an “expensive” ($1,254,000) 2020 Riva 38-51 Italian yacht. A Limited Warranty from Allied Marine was attached. Otherwise, the Agreement disclaimed all liability and damages. Horowitz had a number of issues with the yacht, and Allied Marine worked to correct them; however, Horowitz eventually sent a letter demanding rescission and revocation of acceptance and brought this lawsuit in federal court in Florida against Ferretti Group and Allied Marine. Judge Altman previously agreed to dismiss the claims against Ferretti Group, leaving Allied Marine as the sole defendant. He dismissed the claims for consequential and liquidated damages against Allied Marine, leaving claims for compensatory damages for breach of warranty. Horowitz moved for reconsideration of the dismissal of Allied Marine and, alternatively, that the dismissal be certified for an interlocutory appeal. Judge Altman found nothing to change his prior ruling that Ferretti Group’s disclaimer of liability and damages was unambiguous and was not unconscionable under Florida law. Further, as warranties were validly disclaimed, there was no basis for Horowitz to revoke acceptance of delivery of the vessel under Florida law. Finally, Judge Altman rejected the argument that, because the defendants were affiliated entities, Ferretti Group was liable as a joint venturer of Allied Marine. Judge Altman reasoned: “The bottom line is this: Horowitz agreed that his only recourse—for any problems that might arise with his yacht—would be against Allied Marine. As the case was headed for trial, Judge Altman declined to certify his decision on reconsideration for an interlocutory appeal that would result in piecemeal litigation. Turning to the dismissal of Horowitz’ claim for incidental and consequential damages against Allied Marine, Judge Altman stated that the decision was premature because, under Florida law, if Horowitz demonstrated that the Limited Warranty failed of its essential purpose, then he could seek incidental and consequential damages. Allied Marine and Horowitz then filed cross-motions for summary judgment. Although Horowitz argued that it was undisputed that the yacht was unseaworthy and failed to conform to the standards and specifications, Judge Altman found factual disputes that the parties would need to “clarify” at trial. Allied Marine moved for summary judgment on four issues. Judge Altman agreed with Allied Marine that the Agreement did not require that the yacht be built to any standards other than the 2013 Directive and ISO standards that were harmonized as of the commencement of construction of the yacht. Judge Altman agreed, in part, that Horowitz could not proceed with any warranty claims that were expressly excluded under the Limited Warranty. However, Judge Altman noted that Horowitz still had an implied warranty claim under the Magnuson-Moss Warranty Act that Allied Marine could not disclaim or modify. Allied Marine argued that Horowitz could not proceed with any warranty claims that were not disclosed in the pre-suit revocation letter. Judge Altman agreed that Horowitz had an obligation to give Allied Marine written notice of claims, and he dismissed claims for defects that were raised for the first time in the complaint. However, Judge Altman declined to limit Horowitz to claims asserted in the revocation letter as there were claims in written communications that were separate from the revocation letter. Allied’s last ground for summary judgment was that Horowitz was precluded from claiming nonconformity with conditions that were in existence at the time of delivery and acceptance, as Horowitz signed an agreement that he accepted the vessel as compliant with the conditions in the purchase agreement. Judge Altman disagreed, noting that the Limited Warranty and Purchase and Sale Agreement are separate documents with different obligations. There was a fact question whether acceptance under the Purchase and Sale Agreement waived Horowitz’ rights under the Limited Warranty. See July 2023 Update.
The case was tried to a jury, which found for Horowitz on his claim for breach of the implied warranty of merchantability under the Magnuson-Moss Warranty Act. The jury awarded damages of $546,055.28 (after a reduction for failure to mitigate), and Allied Marine moved for a remittitur or new trial, arguing that the evidence did not support an award greater than $41,155 ($38,455 after the reduction for failure to mitigate). Judge Altman denied Allied Marine’s motion, and Allied Marine appealed to the Eleventh Circuit, arguing that the damages should be limited to the projected cost for repair of the yacht’s many problems. The Eleventh Circuit disagreed, citing Horowitz’ testimony that he purchased the yacht for $1,254,000 and its value to him upon delivery was zero. There was contrary evidence (the value of the vessel prior to delivery was $1.6 million and Allied Marine’s director stated that repairs would be approximately $40,000); however, the Eleventh Circuit held that the jury was entitled to believe Horowitz and conclude that the yacht’s diminished value exceeded the cost of Allied Marine’s recommended repairs. Therefore, the appellate court affirmed the award and Judge Altman’s denial of a remittitur or new trial.
Award of general damages to minor son of $20 million against owner of platform on the OCS for death of rigger was excessive, but the Fifth Circuit affirmed the award for the general damages after it was remitted to $4,955,350.67; award of general damages to widow of $6,600,000, which was remitted to $5,800,838.05 was excess and remanded for a redetermination of the remittitur; Warner v. Talos ERT, LLC, No. 23-30755, 2025 U.S. App. LEXIS 7265 (5th Cir. Mar. 28, 2025) (Ramirez).
Walter Jackson was employed as a rigger by DLS on an oil and gas production platform owned and operated by Talos on the outer Continental Shelf of the Gulf of Mexico off the Louisiana coast. Jackson and other DLS workers were attempting to lower sections of pipe when one of the sections came loose and struck Jackson, resulting in his death. Jackson’s wife and the guardian of his minor child brought suits in federal court in Louisiana against Talos and Diverse Safety and Scaffolding (which provided the scaffolding from which the pipe was being lowered), and the suits were consolidated. Diverse Safety and Scaffolding moved for summary judgment that its scaffolding had no causal connection to the accident, despite not having toe boards in violation of OSHA regulations. Jackson’s beneficiaries argued that the toe board is designed to prevent something from falling or rolling off the scaffold, but Diverse Safety and Scaffolding responded that the toe boards were purposefully left off the scaffolding so that the pipe could be more easily lowered to the deck of the platform (the sections of pipe were pushed over the side of the scaffold deck). It was after the pipe was pushed over the side of the scaffold deck (where the toe board would have been) that the pipe disconnected from its rope. That disconnection was unrelated to the condition of the scaffolding, and the duty of Diverse Safety and Scaffolding did not extend to the risk of the pipe disconnecting from its rope while being lowered. Accordingly, Judge Cain dismissed the suit against Diverse Safety and Scaffolding with prejudice. See March 2022 Update.
Talos moved for summary judgment on the survival claim, asserting that Jackson did not experience conscious physical or mental pain and suffering before his death. Judge Cain applied Louisiana law to the accident on the platform, which permits recovery for damages suffered by the deceased from the time of injury to the moment of death. Talos argued that Jackson was rendered unconscious instantly when struck by the falling pipe and that he could not have experienced fear before his death because he was hit on the back of the head. The plaintiffs cited the report of Jackson’s rapid breathing when crew members first approached him and began to administer CPR, and Judge Cain agreed that the report provided evidence that Jackson may not have died instantaneously. However, it did not demonstrate he experienced any pain, suffering, or other emotion between injury and death. Accordingly, Judge Cain dismissed the survival claim with prejudice. See December 2022 Update.
After Judge Cain twice denied summary judgment to Talos on the merits, the case was tried to a jury which returned a verdict that Talos was 88% at fault and that Jackson’s employer (DLS) was 12% at fault. The jury awarded a total of $20,120,000 to Anika Warner on behalf of her minor son, for loss of past and future financial support, loss of love, affection, and companionship, and past and future mental anguish. The jury awarded a total of $7,587,930 for past and future wage loss, loss of household services, loss of love, affection, and companionship, and past and future mental anguish to Vantrece Jackson as the surviving spouse of Walter Jackson. See March 2023 Update.
Judge Cain declined to grant a new trial, but he ordered a remittitur of the general damages awarded to the plaintiffs. He reduced the general damages for the minor son from $20 million to $4,955,350.67 (before reducing it for the employer negligence) and he remitted the general damages for Vantrece Jackson from $6,600,000 to $5,800,257.07 (before reducing it for the employer negligence). Talos appealed, arguing that a principal is not liable for the negligent acts of an independent contractor. The plaintiffs cited the exception when the principal expressly or impliedly authorized the unsafe work practices, and, writing for the Fifth Circuit, Judge Ramirez agreed that there was sufficient evidence that Talos authorized the unsafe work practice (it approved the equipment list, paid for the manilla rope, and had the power to demand that another tool be used if it so desired). Talos argued that the jury was improperly allowed to give duplicate awards for loss of love and affection ($10 million to the son; $4 million to the spouse) and mental anguish ($10 million to the son; $2.6 million to the spouse). Judge Ramirez disagreed, holding that these are distinct elements of recoverable damages. Turning to the reductions, Judge Ramirez found no abuse of discretion in the reduction of the son’s award, but she believed that the award of general damages to Vantrece Jackson, after the remittitur by Judge Cain, was disproportionately high. Therefore, the Fifth Circuit remanded the case to Judge Cain to redetermine the amount of the remittitur for Vantrece Jackson.
From the federal district courts
Limitation fund for death of seaman only included the value of the tug involved in the operation in which the seaman died and not all of the vessels in the owner’s fleet; In re Osage Marine Services, Inc., No. 4:21-cv-347, 2025 U.S. Dist. LEXIS 8630 (E.D. Mo. Jan. 16, 2025) (Sippel).
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 a 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 Redmond 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 then brought the federal proceeding back into play. See June 2024 Update.
In the limitation proceeding, Love filed a motion for summary judgment that Osage Marine was not entitled to limitation because it could not disprove privity to the acts and conditions which caused Redmond’s death. Love argued that the admission of liability in state court eliminated any dispute regarding the issue of privity. Osage Marine responded that its admission in state court was not determinative in the limitation case and that the facts demonstrated that it lacked privity. Judge Sippel reminded Love that before he lifted the stay, Love stipulated that nothing from the state court proceeding “will serve as res judicata on matters relating to limitation of Petitioner’s liability.” Judge Sippel explained that “sometimes factual issues determined by the state court must be relitigated in federal court,” citing the Eleventh Circuit’s decision in Beiswenger, in which the court stated that “it is possible that several factual issues that were determined by the state court in resolving the negligence question would have to be relitigated in the admiralty court in resolving the privity or knowledge question.” Thus, the admissions in state court were not binding as to the issue of privity, but Judge Sippel held that they were admissible as evidence in the limitation action. See July 2024 Update.
Love next moved to lift the stay on enforcement of the state-court judgment up to the $2,000,000 letter of undertaking that was filed in the limitation action. Love argued that allowing enforcement up to $2,000,000 would not adversely impact Osage Marine because the amount did not exceed the limitation fund. Judge Sippel disagreed, as the limitation fund had not yet been determined. He added that the amount of the fund could be increased or decreased to reflect the actual value of the vessel. There was also an unresolved issue as to whether the flotilla doctrine should apply to the limitation fund. Accordingly, Judge Sippel declined to lift the stay. See February 2025 Update.
Judge Sippel then addressed the issue of the flotilla doctrine. Osage Marine operates harbor tugs that move barges into and out of barge fleets that are owned by Consolidated Grain and Barge Co. That work is performed pursuant to a Fleet Operating Agreement between Osage Marine and Consolidated Grain. The vessels were assigned to specific fleets in different locations that were used for different tasks. Osage Marine had fleets in St. Louis, Missouri; Cape Girardeau, Missouri; Hennepin, Illinois; and Naples, Illinois. At the time of Redmond’s accident, Osage Marine’s operations in St. Louis included five boats. The only vessel owner/operated by Osage Marine that was involved in the incident in which Redmond died was the M/V RAIN MAN. The RAIN MAN was dispatched to help secure two barges into a fleet at St. Louis. The RAIN MAN transported a crew to the barge fleet, and the crew disembarked from the RAIN MAN onto Barge AGS-866B. Redmond died after falling from the Barge into the river. The barges were delivered to the fleet by a tug operated by a company other than Osage Marine, and Osage Marine did not own the barges. Love argued that the value of the limitation fund should include the value of Osage Marine’s other vessels because they were engaged in a single enterprise under the Fleet Operating Agreement with Consolidated Grain, and Osage Marine argued that the limitation fund should be limited to the value of the only Osage Marine vessel involved in the operation, the RAIN MAN. Judge Sippel reasoned that an entire flotilla should be surrendered when the vessels are operated as a unit, with the key factor being whether the vessels “are contractually engaged in common enterprise.” He noted that this interdependence factor was often satisfied in dredging cases, but the vessels in Osage Marine’s fleet operated independently. Unlike the vessels in a dredging operation that operate as a unit, each of Osage Marine’s vessels could be used without relying on the other Osage Marine tugs. Judge Sippel also cited a “temporal limit to which vessels may be considered contractually engaged in a common enterprise,” explaining that “the vessels to be surrendered are those devoted to performance of the contract at the particular time when the fault which causes the loss is committed.” Although Redmond had been aboard a different tug earlier in his shift, that vessel played no role in the operation in which Redmond died. As the RAIN MAN was the only vessel involved in the operation, Judge Sippel held that it was the only vessel whose value should be included in the limitation fund. Finally, Love argued that all of the vessels involved in the rescue effort should be included in the limitation fund, but he could cite no authority for the proposition that those vessels should be considered “offending vessels” under the Limitation Act.
Passenger’s pleading of similar incidents without explaining how they were similar was insufficient to allege constructive notice of the slippery deck on which the passenger fell, but the assertion that the passenger previously complained to the crew of the dangerous condition was sufficient to plead actual notice; Edelman v. MSC Cruises, S.A., No. 24-cv-23060, 2025 U.S. Dist. LEXIS 9200 (S.D. Fla. Jan. 16, 2025) (Bloom).
Gerald Edelman, a passenger on the MERAVIGLIA, slipped on a clear liquid while walking out of the buffet area of the vessel through the means of egress available near the elevators closest to the pool. Edelman brought this suit in federal court in Florida against the cruise line for negligence and failure to warn, asserting that the area was slippery from passengers in wet bathing suits walking over the area. The cruise line moved to dismiss the complaint for insufficient pleading of notice, but Edelman claimed that he established both actual and constructive notice based on his assertions that he complained to the crew of the dangerous condition earlier in the cruise, that there were crew members in the area who should have observed the dangerous condition, that the cruise line had a policy to place warning signs for hidden dangerous conditions and failed to place signs, that the cruise line had a policy to have employees look for and remove slipping hazards, and that there had been prior similar slipping accidents on other ships operated by the cruise line. The cruise line responded that Edelman’s alleged complaint was insufficient to provide notice of the specific danger where he fell, but Judge Bloom disagreed, noting that the complaint asserted that he had complained of the dangerous condition that caused his fall. She also rejected the argument that Edelman had to identify the specific crewmembers who received notice at the motion-to-dismiss stage of the litigation. Consequently, Edelman’s pleading of actual notice was sufficient for Judge Bloom to decline to dismiss the case (she did reject Edelman’s “serial listing of purportedly substantially similar events without any factual support explaining how and why these prior incidents would have put defendant on constructive notice”).
Passenger who walked into an automatic-opening glass door panel failed to establish that the condition was not open and obvious or to prove notice to the cruise line; Chamberlain v. Royal Caribbean Cruises Ltd., No. 23-cv-24039, 2025 U.S. Dist. LEXIS 9547 (S.D. Fla. Jan. 16, 2025) (Martinez).
Christina Chamberlain, a passenger on the MARINER OF THE SEAS, was injured when she walked into an automatic-opening glass door panel that did not open (while carrying a drink in each hand). Chamberlain saw the door but believed the door was open. She brought this suit against the cruise line in federal court in Florida, and the cruise line moved for summary judgment that the condition was open and obvious and that there was no evidence of notice of a dangerous condition. Chamberlain argued that the condition was not open and obvious because she believed the door was open. Judge Rodriguez disagreed, stating that a reasonable person in Chamberlain’s position would have been aware of the risk posed by the door, explaining: “The fact that an automatic glass door may be closed or may not immediately open is discernible through common sense and the ordinary use of eyesight.” With respect to notice, Chamberlain presented evidence of prior incidents, but Judge Martinez answered that the prior incidents were insufficient because they did not involve a passenger being injured by an automatic glass door (this was also fatal to the negligence claim based on res ipsa loquitur). Therefore, Judge Martinez dismissed the complaint with prejudice.
Marine cargo insurer’s failure to conduct a sufficient inventory and adjustment of loss after flooding from a warehouse was a breach of the policy, and the claim was timely, despite the one-year provision in the policy to bring the suit, because the claim had not been finally adjusted; Exist, Inc. v. Tokio Marine America Insurance Co., No. 22-cv-1679, 2025 U.S. Dist. LEXIS 10062 (S.D.N.Y. Jan. 21, 2025) (Torres).
Exist is a wholesale clothing importer and distributor that purchased a Marine Cargo Policy from Tokio Marine to cover its goods (apparel, sportswear, and textiles) during ocean carriage, domestic inland transit, and storage in specified warehouses. After a flood at Exist’s warehouse in Fort Lauderdale, Florida, Exist segregated 366,411 damaged items and determined that the items had a total retail value of $2,621,952.71. Tokio Marine engaged companies to inventory and dispose of damaged items, but there was a substantial difference in the number of items, and Tokio Marine made a final payment of $1,014,035.40 on the claim. Exist brought this suit against Tokio Marine in federal court in New York, asserting claims under the policy as well as extra-contractual claims (predicating jurisdiction on diversity and demanding a jury trial). Tokio Marine argued that the court had admiralty jurisdiction and contended that the case should be tried without a jury. The policy contained a choice-of-law provision for maritime law or, in its absence, New York law. Judge Torres began her analysis of whether the claims would be presented to a jury by stating: “Whether a jury trial is proper in the instant case depends on the law that applies to Exist’s claims” [is it the applicable law or the basis pleaded for jurisdiction?]. Judge Torres then considered the contract claims and noted that under Kirby, a contract covering both maritime and non-maritime transit is subject to admiralty jurisdiction as long as the maritime aspect of the contract is not insubstantial. As the contract’s subject matter was primarily on navigable waters, Judge Torres held that the claims for breach of contract, breach of the implied covenant of good faith and fair dealing, and unjust enrichment were governed by admiralty law and did not entitle Exist to a jury trial. However, the tort claims for conversion, fraud, and civil conspiracy did not occur on navigable waters and did not involve a potentially disruptive effect on maritime commerce. Therefore, admiralty law did not apply to the tort claims. As such, Exist was entitled to a jury trial on the tort claims under the Seventh Amendment. Citing Fitzgerald, Judge Torres held that, as the claims all arose from the same set of facts, Exist was entitled to a jury trial on all the claims. See February 2024 Update.
Exist and Tokio Marine filed cross-motions for summary judgment, and, under Wilburn Boat, Judge Torres held that state law applied to the dispute. She then considered whether New York or Florida law should apply and, giving considerable weight to the New York choice-of-law clause, held that New York law governed the contract claim. Tokio Marine argued that the contract claim was time-barred by the policy requirement that suit be brought within one year from the date of the accident from which the claim arises. Exist countered that the provision was unreasonable and unenforceable because Tokio Marine did not finalize the adjustment of the claim for more than a year after the flood. Judge Torres agreed with Exist, reasoning that Tokio Marine’s argument “would allow any insurer to unilaterally bar claims for breach of an insurance policy by simply delaying the authentication and adjustment of an insured’s claim.” Applying New York’s six-year period for contract claims, she held that the suit was timely. Turning to Exist’s argument that Tokio Marine breached the policy by an improper adjustment, Judge Torres agreed that Tokio Marine’s inventorying and adjustment process was flawed and breached the policy (based on a discrepancy in the number of items that Tokio Marine has not explained). Tokio Marine argued that Exist shared in the responsibility because it failed to review and object to the handwritten tally of damaged goods during the inventorying process, but Tokio Marine could point to no provision in the policy (or case law) to support that argument (the policy did not contain a cooperation clause), and Judge Torres held that Tokio Marine, not Exist, was responsible for authenticating the loss and adjusting the claim. Therefore, Judge Torres held that there was no triable issue that Tokio Marine breached the policy by failing to properly adjust the claim and pay for all covered losses. Exist also brought a claim that instead of destroying the damaged merchandise, Tokio Marine allowed it to be taken to a landfill or a local flea market. However, Judge Torres noted that it was the obligation of Exist to ensure that the goods were destroyed, and she held that there was no triable issue on that claim. She also denied Exist’s claim for breach of the covenant of good faith and fair dealing as it was based on the same conduct as the claim for breach of contract. Judge Torres could not award damages at this stage as there were factual disputes as to the total number of items and the value of the items (after subtracting “un-incurred” charges, costs, expenses, and discounts. Judge Torres also dismissed Exist’s claim for unjust enrichment that it benefited from sale of damaged merchandise, as the claim was based on conjecture. Judge Torres then considered Exist’s tort claims for conversion and fraud that mirrored the unjust enrichment claim. Applying Florida law, Judge Torres rejected the claims on the basis that there was no evidence to support the claims. Finally, Judge Torres dismissed the claims for deceptive practices and punitive damages under New York law.
General allegations about the presence of crewmembers in the area of the slippery stair do not establish notice of the dangerous condition; however, the passenger’s pleading of placement of friction strips was sufficient; passenger’s failure to plead that the condition was not open and obvious required repleading of the failure-to-warn allegation; Judge denied nitpicky argument that pleading of a duty of reasonable care was improper when the duty is a reasonable care under the circumstances; Gharaptyan v. Carnival Corp., No. 24-cv-23879, 2025 U.S. Dist. LEXIS 11159 (S.D. Fla. Jan. 21, 2025) (Scola).
Adena Gharaptyan, a passenger on the CARNIVAL RADIANCE, was injured when she fell on a step while descending the stairway on Deck 12 of the vessel. The stairs connected the bottom and top of a waterslide and were wet from the dripping water, sunscreen, and other oils from passengers using the waterslide. Gharaptyan brought this suit in federal court in Florida against the cruise line, asserting counts for failure to warn and negligence with respect to the unsafe condition of the step. The cruise line moved to dismiss the two counts for several reasons. The cruise line argued that Gharaptyan insufficiently pleaded notice, and Gharaptyan responded that the omnipresence of the crew around this deck established that the cruise line should have been aware of the condition, and that the cruise line had notice because it took corrective action of attaching friction strips to the stairs on this staircase. Judge Scola rejected the argument with respect to the presence of the crew because it was not contained in the pleading and because the allegation did not set forth the how the cruise line had notice: “Generalized allegations such as the frequency of water on the staircase and the presence of crewmembers do not suffice.” Judge Scola did believe, however, that Gharaptyan sufficiently alleged notice as to the placement of friction strips on the stairway prior to the incident, explaining that it was reasonable to infer that the cruise line “placed the friction strips on the stairs because it knew that the stairs had a tendency to become dangerously wet and slippery” (rejecting the argument that Gharaptyan failed to establish a connection between the placement of the steps and the dangerous condition). Judge Scola then considered the argument that the claim for failure to warn should be dismissed because the condition was open and obvious (“people were constantly dripping water and sunscreen onto these stairs all day long”), certainly by the third day of the cruise when the accident occurred. As Gharaptyan’s pleading did not allege how the slippery conditions were not open and obvious, Judge Scola dismissed the count without prejudice. The cruise line objected to the negligence count on the ground that the pleading alleged that the cruise line owed a duty of reasonable care rather than a duty of reasonable care under the circumstances. Judge Scola answered that the cruise line was “being much too nitpicky with this argument,” noting that even the Eleventh Circuit used these expressions interchangeably. He denied the motion to dismiss the second count.
Judge declined to dismiss passenger’s injury suit during excursion off the ship based on a disclaimer of liability in the Passage Ticket Contract as the contract was not incorporated into the complaint; passenger failed to sufficiently plead notice to the cruise line of the hazardous conditions on the ferry, but the passenger was allowed to replead; Buesking v. Princess Cruise Lines, Ltd., No. 2:24-cv-4935, 2025 U.S. Dist. LEXIS 11591 (C.D. Cal. Jan. 22, 2025) (Almadani).
Daryel Buesking, a passenger on the ENCHANTED PRINCESS, was injured during an excursion from Naples, Italy to the island of Capri when he tripped over an obstacle on the ferry (believed to be a bulkhead door threshold). Asserting that the ferry was overcrowded with passengers who were instructed to board at the same time in a chaotic process, Buesking brought this suit in federal court in California against the cruise line, the excursion operator, and the on-site tour operator. His complaint alleged three causes of action against the cruise line, general negligence, negligent failure to warn, and agency liability for the negligence of the excursion operator. The cruise line moved to dismiss the allegations against it, first arguing that the Passage Ticket Contract contained a provision disclaiming liability for shore excursions. The cruise line argued that the Contract was incorporated into the complaint because the complaint alleged that the action was brought in federal court in accordance with the forum-selection clause of the Contract. Judge Almadani disagreed, reasoning that the contract was not required for the passenger to state a claim for negligence for breach of a duty owed to a passenger and noting that it was the cruise line which submitted the terms of the Contract as a defense. Judge Almadani added that the Contract was not authenticated. Accordingly, she declined to dismiss the complaint based on the shore-excursion liability disclaimer in the Contract. The cruise line also moved to dismiss the allegations of general negligence and failure to warn on the ground that the complaint failed to allege facts establishing that the cruise line should have known that the ferry would be unreasonably crowded or that there was an unreasonably dangerous unmarked threshold on the ferry. Judge Almadani agreed that the cruise line’s knowledge of the number of passengers on the excursion from its sale of tickets did not establish knowledge of the cruise line of overcrowding as there was no notice of the capacity of the ferry or the number of passengers from the general public. Judge Almadani also did not find notice from the initial approval process for the excursion and annual inspections as the facts did not correlate to the particular ferry or the date and conditions of this particular trip. She explained: “The incident alleged here involved a variable condition at an excursion location. This distinction matters because the former context requires more factual content than the latter to support a reasonable inference of actual or constructive notice.” Similarly, Judge Almadani found insufficient notice of the risk of the unmarked threshold, reasoning that the passenger would need to allege facts to support the inference that the cruise line undertook “the duty to structurally inspect for every conceivable hazard on every conceivable means of conveyance that the tour operator might have used to transport tour participants to the island of Capri.” Therefore, Judge Almadani dismissed the counts involving negligence and failure to warn, but allowed Buesking leave to amend.
District Judge declined to overrule the Eleventh Circuit and applied the discretionary function exception to bar the claim of boaters against the United States and the TVA who were injured when their boat allided with a duck blind in a navigable lake; Jones v. United States, No. 5:22-cv-620, 2025 U.S. Dist. LEXIS 19071 (N.D. Ala. Jan. 22, 2025) (Burke).
Schrade Jones and Carter Gilliam were bowfishing at night in Lake Guntersville, Alabama, when their vessel allided with an unmarked duck blind. Jones and Gilliam brought this suit in federal court in Alabama against the United States and the Tennessee Valley Authority under the Suits in Admiralty Act, alleging that the defendants negligently and wantonly failed to remove, warn of, or mark the duck blind. The defendants moved to dismiss the complaint, arguing that the decisions on warning, removing, and marking are discretionary and fall within the discretionary function exception to the waiver of sovereign immunity in the SIAA. Jones and Gilliam responded that engrafting a discretionary function exception onto the SIAA violates separation of powers and that the cases cited by the defendants in support of the discretionary function exception were based on “bad law.” Judge Burke began by noting that the court had admiralty jurisdiction over the suit and that maritime law governed the substantive issues. He then agreed that the SIAA does waive sovereign immunity for suits against the United States and any federally owned corporation and that the claims could only proceed with the waiver of sovereign immunity in the SIAA. Although the Eleventh Circuit has clearly applied the discretionary function exception in actions brought under the SIAA, Jones and Gilliam spent almost 29 pages arguing that the discretionary function exception did not apply. Judge Burke declined to overrule the Eleventh Circuit and proceeded to apply the discretionary function exception. The exception applies if the conduct involves an element of judgment or choice, and conduct involves an element of judgment or choice unless “a federal statute, regulation, or policy specifically [prescribes] a course of action embodying a fixed or readily ascertainable standard.” The plaintiffs failed to identify any statute, regulation, or policy that required marking, warning, or removal with respect to a privately owned structure located outside of the commercial navigation channel. Instead, they argued that duties imposed by the general maritime law and by Alabama case law on negligence were sufficient. However, Judge Burke answered that neither maritime law nor Alabama law specifically prescribed a course of action embodying a fixed or readily ascertainable standard. Therefore, the plaintiffs failed to satisfy the first requirement to overcome the discretionary function exception. Judge Burke added that the second element was not satisfied because the decision not to mark, warn, or remove is the type of decision that the exception is designed to shield. As the United States and the TVA were entitled to sovereign immunity, Judge Burke dismissed the complaint. Jones and Gilliam filed a notice of appeal to the Eleventh Circuit.
Issues whether vessel owner’s claim for arbitration against the vessel’s insurer was timely and whether the family member exclusion in the policy barred the claim of the vessel owner’s sister-in-law were to be decided by the arbitrator under the arbitration provision of the yacht policy; Falvo v. Atlantic Specialty Insurance Co., No. 8:24-cv-1412, 2025 U.S. Dist. LEXIS 11733 (M.D. Fla. Jan. 23, 2025) (Jung).
Thomas Falvo, owner of the SCOOP, was operating the vessel in the coastal waters off the coast of New Port Richey, Pasco County, Florida, when the vessel struck a wake, injuring passenger Denise Fernetti. Falvo insured the vessel with Atlantic Specialty Insurance Co., and Fernetti submitted a claim for her injuries to Atlantic Specialty. Fernetti brought suits in federal court in Florida against Falvo, in personam, and against the SCOOP, in rem, and Atlantic Specialty initially provided a defense to Falvo and the vessel. After Atlantic Specialty confirmed that Fernetti was Falvo’s sister-in-law (married to Falvo’s brother), Atlantic Specialty denied coverage on the ground that Fernetti was a “family member” under the family member liability exclusion, and it withdrew the defense of Falvo and the vessel. Falvo brought suit against Atlantic Specialty in state court in Pasco County, Florida (seeking a declaratory judgment and specific performance compelling arbitration), and Atlantic Specialty removed the case to federal court based on diversity. Atlantic Specialty moved for judgment on the pleadings, arguing that Falvo had waived his right to arbitrate and that Atlantic Specialty was entitled to judgment based on the family member exclusion. Atlantic Specialty argued that Falvo had answered the insurer’s counterclaim and had participated in the court’s scheduling conference, but Judge Jung did not believe that those actions were sufficient to waive the right to arbitration, particularly when the suit brought by Falvo sought specific performance to compel arbitration. Judge Jung then considered Atlantic Specialty’s argument that the demand for arbitration was untimely because the policy’s arbitration provision required that the demand be made within one year of the date of the loss or damage. Concluding that the determination whether the timeliness provision was triggered was a question that was left to the arbitrator, Judge Jung declined to determine whether the demand was timely. Judge Jung reached a similar result with respect to the issue whether the family member exclusion precluded coverage, reasoning that the dispute whether the claim was payable fell within the arbitration provision and should be decided by the arbitrator. Accordingly, Judge Jung denied Atlantic Specialty’s motion for judgment on the pleadings and advised Falvo to file a motion to compel arbitration if he wanted to have the claim arbitrated.
Seaman was not entitled to a jury trial in his suit against his employer after filing two complaints based on admiralty, and he was not entitled to a jury in his counterclaim to his employer’s declaratory judgment action that was brought based on admiralty; Marine Management Services, Inc. v. Slater, Nos. 2:23-cv-632, 2:23-cv-1604, 2025 U.S. Dist. LEXIS 12910 (N.D. Ala. Jan. 24, 2025) (Manasco).
Archie Lee Slater was employed by Marine Management as a Deck Foreman on the FPSO (floating, production, storage, and offloading) TURRITELLA. During a safety drill, Slater injured his groin, and during the treatment for the injury he complained of back pain. The parties disputed whether the back pain was related to the injury on the TURRITELLA or to the back surgery that Slater underwent three years earlier. Marine Management paid maintenance (and cure for treatment of his groin injury) until Slater reached maximum cure with respect to the groin injury, and Marine Maintenance brought a declaratory judgment in federal court in Alabama, based on admiralty jurisdiction, seeking a declaration on the issue whether Slater’s back problems were related to an injury or illness in the service of the TURRITELLA. The next day, Slater filed a complaint based on admiralty jurisdiction against Marine Management and others in federal court in Louisiana, but Judge Morgan transferred that suit to the federal court in Alabama where the suits were consolidated. Slater then filed a counterclaim in the declaratory judgment action and demanded a jury. He also filed a motion for leave to file a third amended complaint in which he sought to withdraw his designation of his suit as an admiralty suit pursuant to Rule 9(h) and to request a trial by jury. Judge Manasco denied leave to file a third amended complaint, reasoning that Slater had not provided an explanation for the change of course 16 months after his initial complaint and 11 months after he filed his second complaint. With respect to the counterclaim, Judge Manasco explained that Marine Management’s election to proceed in admiralty “cuts off any right Mr. Slater may have had to a jury trial” and precluded Slater “from invoking the right to trial by jury which may otherwise exist.” He held that “Mr. Slater may not supplant Marine Management’s election to proceed under admiralty jurisdiction without a jury trial by demanding a jury trial in his counterclaim.”
Judge affirmed Magistrate Judge’s recommendation for award of attorney fees to the prevailing defendant, as the plaintiff did not timely raise the argument that admiralty law applied and did not provide for an award of attorney fees; Murphy v. Airway Air Charter Inc., No. 23-cv-23654, 2025 U.S. Dist. LEXIS 13723 (S.D. Fla. Jan. 27, 2025) (Bloom).
Richard C. Murphy, III, chartered a Cessna 402B from Airway Air Charter for a flight from Opa-Locka, Florida to Chub Cay, The Bahamas. The aircraft was owned by Venture Air Solutions and was operated by Airway Air Charter. Atlantic Aviation provided supplies and fuel. Murphy was the sole passenger, and the plane was piloted by Alex Gutierrez. The plane ran out of fuel during the flight, causing it to crash into the ocean. Murphy and his wife brought this suit in state court in Miami-Dade County, Florida, against Airway Air Charter, Venture Air Solutions, and Gutierrez, asserting claims under Florida law. The defendants moved to dismiss the case, arguing that the claims were governed by the Warsaw Convention (as updated by the Montreal Convention), not Florida law, and the plaintiffs filed an amended complaint based on the Warsaw Convention. The plaintiffs added Atlantic Aviation in their third amended complaint, and Atlantic Aviation removed the case based on federal question jurisdiction (from the Warsaw Convention) and admiralty jurisdiction. In federal court, the plaintiffs filed a fourth amended complaint, attaching the Charter Agreement. Airway Air Charter and Gutierrez moved to dismiss the fourth amended complaint, citing the liability waiver for injuries in the Charter Agreement. The plaintiffs responded that Airway Air Charter and Gutierrez had waived their right to raise the waiver as a defense by repeatedly failing to raise it as an affirmative defense in their answers to the previous complaints filed by the plaintiffs. Alternatively, the plaintiffs argued that the waiver was unenforceable under the Warsaw Convention. Airway Air Charter and Gutierrez argued that they did timely raise the waiver defense in their response to the fourth amended complaint, which was the operative pleading at the time. Judge Bloom rejected that argument as the Eleventh Circuit has held that an amended complaint does not automatically revive all defenses or objections that the defendant may have waived in response to a prior complaint. She held that Airway Air Charter and Gutierrez waived reliance on the waiver by failing to raise it as an affirmative defense when answering the complaint in state court. Judge Bloom also addressed the argument that the waiver was unenforceable and the defendants’ argument that the Warsaw Convention does not prevent the parties from entering into a different agreement limiting liability. Judge Bloom agreed that the parties can enter into agreements for different limitations on liability, but the agreements may only provide a limitation in excess of the cap on liability of $75,000. As the waiver in this case provided for a release of all liability, Judge Bloom held that the defendants had not shown that Murphy failed to state a claim based on the waiver provision. See May 2024 Update.
The parties filed several motions that were addressed by Judge Bloom. The defendants challenged the testimony of Murphy’s accident reconstruction expert, Mark Pottinger, that the aircraft most likely experienced dual engine failure as the result of fuel starvation when the pilot mismanaged available fuel by operating on the main fuel tanks until the fuel in those tanks was depleted. Although the defendants argued that Pottinger only held a single-engine private pilot’s license, not the multi-engine license required to fly the Cessna 402B, Judge Bloom noted that Pottinger had extensive qualifications from his education, training, and experience. The defendants next argued that Pottinger’s testimony should be excluded because the overwhelming evidence indicated the main tanks were fueled (but Pottinger opined the auxiliary tanks were fueled) and because his opinions were based on an unreliable Report of the Aircraft Investigation Authority of The Bahamas. However, Judge Bloom found sufficient support for Pottinger’s opinions, and the fact that the Report is inadmissible did not mean that his testimony was unreliable. Judge Bloom did agree that Pottinger could not testify that there was a violation of aviation regulations; however, he could testify as to the requirements of the regulations and about the evidence that may indicate those regulations were not followed. Judge Bloom also held that Pottinger’s opinion that Atlantic should have taken steps to preserve all video of the aircraft fueling, which deprived the accident investigators of valuable information, should be excluded because Pottinger’s experience and training did not demonstrate reliability of his opinions with respect to video footage and because his opinion was not probative of whether the defendant acted negligently in fueling the aircraft. Murphy sought to exclude the opinion of the defendants’ rebuttal expert, Keith O. Major, that the Report of the Bahamian Authority was inadmissible under Bahamian law. Judge Bloom agreed to strike that opinion because Murphy’s expert could rely on an inadmissible report in formulating his opinion and because Bahamian law was not applicable in this case. Judge Bloom next considered Murphy’s motion for summary judgment that the limitation of liability was unenforceable under the Warsaw Convention. The parties provided confusing briefing on whether the original Warsaw Convention or its subsequent protocols (the Hague Protocol or the Montreal Convention) applied. Murphy argued that the Hague Protocol applied because The Bahamas is not a party to the Montreal Convention, but the United States is a party to all three. As the flight was part of a round trip to/from the United States, Judge Bloom held that the Montreal Convention applied with its prohibition on agreements absolving a carrier from liability and its prohibition on limitation of liability of damages of $75,000 or less. Consequently, Judge Bloom held that the defendants could not rely on the limitation. Finally, Atlantic moved for summary judgment, arguing that any breach of duty in fueling the aircraft was not the proximate cause of the accident because the pilot bears the ultimate responsibility for the operation of the plane, including ensuring there is sufficient fuel. Judge Bloom believed, however, that the issue of proximate causation was properly left to the jury. See October 2024 Update.
In preparation for trial, Judge Bloom considered the parties’ motions in limine and held that the Bahamian Aircraft Accident Investigation Authority Report was admissible, once authenticated under the public records exception. She rejected the argument that the report was inadmissible under Bahamian law (as the claims are governed by Florida law) and the argument that the court should analogize the report to the inadmissibility of NTSB reports (answering that the report “is not a NTSB report”). Airway argued that evidence of Murphy’s emotional damages should be excluded based on the limitation in the Montreal Convention that a plaintiff cannot recover emotional damages unless they are “sufficiently connected to a physical injury.” Judge Bloom answered that to the extent Murphy can establish that he suffered emotional harm as a direct result of the physical injuries he suffered, the damages are recoverable.
Venture Air Solutions, owner of the plane, was sued for vicarious liability of the pilot and under a dangerous instrumentality theory. Venture sent Murphy a proposal for settlement that was unanswered, and Judge Bloom eventually granted summary judgment in favor of Venture. Venture then sought attorney fees and costs (pursuant to Florida’s statute providing for recovery of attorney fees), and Magistrate Judge Torres recommended an award of attorney fees because Venture prevailed on state as well as federal claims. Magistrate Judge Torres recommended an award of fees in the amount of $28,359.75, based on rates of $225 (partner) and $175 (associate).
The case was tried to a jury, and, on October 16, 2024, the jury found that Alex Gutierez and Airway were negligent, but that Atlantic was not negligent. The jury apportioned fault to Murphy (20%), Airway (40%), and Gutierrez (40%). The jury found damages in the total amount of $2,912,888, for past medical expenses ($12,888), past and future pain and suffering, disability, impairment, and disfigurement ($1,160,000), and mental anguish, inconvenience, and loss of capacity for the enjoyment of life as a result of the bodily injury ($1,740,000). Judge Bloom accordingly issued a final judgment against both Airway and Gutierrez. Airway and Gutierrez filed a motion for new trial and a notice of appeal. See December 2024 Update.
Murphy filed an objection to Magistrate Judge Torres’ recommendation with respect to attorney fees, arguing that federal law applied (adopting the American Rule for attorney fees) rather than Florida law (offer of judgment statute). Judge Bloom noted that Magistrate Judge Torres had concluded that Venture prevailed on claims under Florida law, but Murphy argued that the case was removed, in part, based on admiralty jurisdiction and that substantive admiralty law applied regardless of how Murphy pleaded the case: “Once a court enjoys admiralty jurisdiction, the substantive law of admiralty comes with it. That includes the American Rule.” Venture responded that there was supplemental jurisdiction over the claims asserted by Murphy and that Murphy had not contended that maritime law applied to the claims until it responded to the recommendation of Magistrate Judge Torres. Judge Bloom agreed that the argument based on application of admiralty law, which had not been presented to the Magistrate Judge, was untimely, stating that although Murphy “may indeed be correct that Venture is not entitled to attorneys’ fees because the claims are governed by federal admiralty law,” she did not have reach the merits given the “failure to properly preserve the issue for the Court’s review.” Accordingly, as the argument was untimely, Judge Bloom adopted the recommendation with respect to attorney fees.
Statement of examining physician as to what the passenger said about his knee giving way was not an inadmissible human factor opinion; liability expert’s opinions on the duty of the cruise ship were permissible, but his opinions on fault were unreliable and unhelpful legal conclusions; life care planner/physiatrist’s opinions on the cost of future medical treatment that relied on Google and not Medicare guidelines were stricken; liability expert’s opinions based on review of CCTV footage were speculative and unhelpful; Lehmann v. Carnival Corp., No. 1:24-cv-20060, 2025 U.S. Dist. LEXIS 15944 (S.D. Fla. Jan. 29, 2025) (Goodman).
Arthur Lehmann, a passenger on the CARNIVAL PANORAMA fell on a tender boat that he boarded in order to take him to the port in Cabo San Lucas, Mexico. Lehmann brought this suit against the cruise line in federal court in Florida, alleging negligence and failure to warn, and Lehmann filed motions to strike the cruise line’s medical expert, Dr. Dominic Lewis, and its rebuttal liability expert, David Martyn. The cruise line moved to strike Lehmann’s tender operations expert, Randal Jaques, and Lehmann’s medical billing expert, Dr. William Tejeiro. Lehmann objected to the statement in the report of Dr. Lewis that “from a causation standpoint, the patient reported a history of a bad right knee and noted that his fall resulted from his leg giving way.” Lehmann argued that Dr. Lewis should not be allowed to give a human factor opinion on how Lehmann was injured, but Chief Magistrate Judge Goodman answered that the statement was not an opinion. It simply reflected what Lehmann told him. He added that the report did not contain an opinion that Lehmann’s pre-existing medical condition caused the fall. Chief Magistrate Judge Goodman noted that there might be persuasive challenges to the report, such as that it did not actually offer an opinion, but the motion did not make that argument. Accordingly, Chief Magistrate Judge Goodman recommended that the motion be denied “because his motion does not assert as grounds the most-likely-to-be-successful arguments.” The cruise line argued that the opinions of Jaques (described as a “jack-of-all-trades” expert), who was engaged as a safety consultant and accident analyst, should be stricken as unreliable and because the opinions were not helpful to the trier of fact. The cruise line objected that Jaques failed to perform any testing or personally inspect the vessel, but Chief Magistrate Judge Goodman answered that opinions related to safety standards and some dangers do not require detailed measurements or experiments. He concluded that opinions about the danger of transfer operations and the duty of the cruise ship crew would be allowed. However, Chief Magistrate Judge Goodman did not believe that Jaques’ opinions about the fault of the crew were permissible because they involved unreliable methodology, impermissibly opined on the ultimate legal conclusions, and were unhelpful to the fact finder. The cruise line objected to the opinions of Dr. Tejeiro as a life care planner/physiatrist on the cost of Lehmann’s future medical treatment because he failed to review any Medicare guidelines, tables, or reimbursement rates and even relied on Google as a source. Agreeing that Dr. Tejeiro’s opinions about future costs were based on unreliable methodology, Magistrate Chief Judge Goodman recommended their exclusion. Finally, Lehmann objected to the opinions of Martyn, a forensic engineer who was hired to testify about the safety of the tender boat operations because he based his opinions on a review of the CCTV footage, and the opinions were speculative and unhelpful to the fact finder. Chief Magistrate Judge Goodman first noted that Martyn was a rebuttal expert and, if the opinions on fault offered by Jaques were excluded, it would not be necessary for Martyn to rebut them. Nonetheless, Chief Magistrate Judge Goodman agreed that they were inadmissible.
Yacht owner’s lack of credibility resulted in denial of claims against insurer for repairs to yacht after hurricane; Great Lakes Reinsurance (UK) SE v. Herzig, No. 16-cv-9848, 2025 U.S. Dist. LEXIS 18287 (S.D.N.Y. Jan. 31. 2025) (Gardephe).
Peter Herzig, a resident of Manhattan, bought the 62-foot yacht CRESCENDO in 1998 for approximately $1.4 million. In 2015, the yacht was insured with AIG for $600,000 when it was struck by another vessel. There was a dispute about the damage/repair, and Herzig retained attorney Adam Heffner to represent him. Herzig eventually settled with AIG for the face value of the policy even though the repairs turned out to be less than $270,000. Herzig then retained a retail insurance broker, Crystal & Co., to obtain new coverage for the yacht, and he sought coverage in the amount of $600,000 while stating that the vessel had been purchased for that amount and was undergoing repair in the amount of $270,000. There were discussions during the underwriting why AIG paid $600,000, but Great Lakes’ underwriter/claims agent, Concept Special Risks, issued a policy with coverage for the CRESCENDO, effective from May 26, 2016, subject to a valuation survey (the survey did value the vessel at $625,000). A few months later, on October 7, 2016, the yacht was damaged while in port in Jacksonville by Hurricane Matthew. Concept became concerned about the value of the vessel, with its underwriting manager stating that it was common sense that a vessel purchased in 1998 for $600,000 would not be worth $600,000 twenty years later. Concept issued an endorsement reducing the coverage to $300,000. Meanwhile, Herzig obtained repair quotes ranging from $155,000 to $490,000, and he proposed a settlement for $300,000 with the policy remaining in effect for its full term (until May 2017). Attorney Heffner represented Herzig in negotiations that eventually resulted in a policyholder release for $175,000. A week before the execution of the release, Great Lakes filed this suit against Herzig in federal court in New York, seeking a declaration that it owed no more than $175,000 as the reasonable cost of repair of the damage. A few months later, Great Lakes amended the complaint to seek a declaration that the release was valid and binding. Herzig counterclaimed for fraud, rescission, breach of contract, and breach of the covenant of good faith and fair dealing, and Great Lakes filed another amended complaint, seeking declarations that the policy was void ab initio. Great Lakes moved for summary judgment on its claims and, after attorney Heffner died, moved to strike Heffner’s unsworn declaration that was filed in opposition to the motion for summary judgment. The declaration provided the only evidentiary support for Herzig’s claims that he had to accept the “exploding” settlement offer or Great Lakes would cancel the policy and pursue its claims against him and that the endorsement reducing coverage was applicable. Herzig argued that Heffner’s declaration was admissible under the residual exception to the hearsay rule, but Judge Gardephe did not find that the declaration was particularly trustworthy under Fed. R. Evid. 807, and he added that it was not subject to challenge through cross-examination and was uncorroborated on material points. Thus, Judge Gardephe struck the declaration. Turning to the validity of the release, Judge Gardephe applied New York law in accordance with the policy’s choice-of-law clause (choosing New York law in the absence of well-established, entrenched principles of admiralty law). Judge Gardephe agreed with Herzig that there was a material issue of fact about whether Herzig relied on representations concerning the endorsement; however, he did not believe it was reasonable for Herzig to rely on Concept’s statements about the endorsement being in effect because Herzig could have easily discovered the facts and legal doctrines about the endorsement actually being in effect and retroactive to the loss. Judge Gardephe also rejected Herzig’s duress argument because Herzig accepted the offer before the allegedly unlawful threat to cancel his insurance. Therefore, Judge Gardephe held that the release was valid and enforceable, which disposed of Great Lakes’ argument that it was entitled to restitution of the $175,000 that Great Lakes paid as consideration for the release: “Having granted Great Lakes summary judgment on its claim that the Release is a valid and binding contract, this Court cannot now dismantle that same contract and direct Herzig to return the consideration that is a key element in the formation of any binding contract.” Finally, Judge Gardephe noted that Great Lakes had not moved for summary judgment on Herzig’s counterclaims, so he asked Herzig to advise the court whether he intended to proceed with his counterclaims (in light of the analysis in the opinion). See July 2023 Update.
Herzig filed a motion for reconsideration and a response to the court’s order to advise whether he was continuing to proceed with his counterclaims. Judge Gardephe declined to grant reconsideration, reiterating that the Heffner declaration (and corresponding portions of Herzig’s declaration) were inadmissible hearsay in connection with the threats and misrepresentations allegedly made to Heffner. Herzig argued that the statements in his declaration about what Heffner told him were admissible to establish the state of mind of Heffner and Herzig, but Judge Gardephe called that argument “nonsense.” Similarly, Judge Gardephe rejected the contention that the statements contained probative facts on Heffner’s discussions that induced Herzig to agree to the low-ball settlement, answering that the statements were offered to establish the truth of what the declaration said—that Goldman made misrepresentations and threats to Heffner. Judge Gardephe also disagreed with Herzig’s argument that the court was required to give the parties notice and a reasonable opportunity to respond so that the court might consider the admissibility of the Herzig declaration because Great Lakes did not seek to strike the Herzig declaration (as opposed to the Heffner declaration). Judge Gardephe answered that Rule 56 provides clear notice that declarations must be admissible in order to be considered. Herzig also presented an argument that Judge Gardephe described as “likewise nonsense,” that the issue of whether Herzig reasonably relied on Great Lakes’ misrepresentations was not a ground on which Great Lakes sought summary judgment. However, Herzig asserted fraudulent inducement as a defense to the motion for summary judgment and justifiable reliance. Herzig had the burden on this defense to enforcement of the release and was aware that the court would consider whether he had proffered sufficient evidence on the defense that he had raised. As the claimed misrepresentations were contradicted by the policy and endorsement in Herzig’s possession, he could not have reasonably relied on any of the purported misrepresentations and was not fraudulently induced to sign the release. Judge Gardephe then turned to Herzig’s counterclaims. Instead of addressing why the release did not bar his claim, Herzig argued the merits for his contention that he was owed more than the release sum of $175,000. That contention simply demonstrated that the release covered what he was claiming, and Judge Gardephe held that the fourth counterclaim (breach of contract) would be dismissed because that claim was barred by the release. However, as Great Lakes “inexplicably” did not move for summary judgment on Herzig’s counterclaims and the time had passed for it to do so, Judge Gardephe held that the other counterclaims would proceed to trial. See August 2023 Update.
After Judge Gardephe’s rulings, the only claims remaining were Herzig’s counterclaims for fraudulent inducement and rescission based on Great Lakes’ alleged material misrepresentations in connection with Herzig’s execution of the release and Herzig’s claim for breach of contract arising out of the November 2016 Endorsement (arguing that the unilateral modification of the agreed value was a breach of the policy). The case was tried to Judge Gardephe, and Herzig and Goldman were the only witnesses. Finding that Herzig was not credible and that Goldman was credible, Judge Gardephe ruled against Herzig on all of the counterclaims. He held that Herzig had not established that he reasonably relied on fraudulent misstatements by Goldman for the claims for fraud and rescission and that the validity of the release precluded the contract claim. Judge Gardephe added that Herzig had failed to establish damages from any breach of contract, explaining: “Herzig’s contention that the Endorsement caused him to accept a settlement he would otherwise have rejected is far outside the ‘probable result[s]’ of the Endorsement.” He also answered that Herzig’s claim for damages flowing from loss of use of the CRESCENDO, including expenses associated with maintenance, docking, and travel, are not recoverable either under the policy or under admiralty law.
Single claimant’s stipulations were sufficient for the limitation court to lift the stay to allow the claimant to proceed with his claim in state court; In re Great Lakes Dredge & Dock Co., No. 4:23-cv-4200, 2025 U.S. Dist. LEXIS 18544 (S.D. Tex. Feb. 3, 2025) (Palermo).
Jose De La Fuente was injured while welding inside a pipe on DERRICK BARGE 69, owned by Great Lakes Dredge & Dock Co., and brought suit against Great Lakes in state court in Harris County, Texas. Great Lakes then filed this limitation action in federal court in Texas, and De La Fuente brought a claim in the limitation action. There were no other claims in the limitation action. De La Fuente moved to lift the stay so that he could pursue his suit in state court. He presented stipulations that gave the federal court exclusive authority over all issues relating to limitation of liability and agreeing that he would not seek to execute on any judgment against Great Lakes that exceeded De La Fuente’s pro rata portion of the proper limitation fund. Finding the stipulations to be proper, Magistrate Judge Palermo lifted the stay.
Provision in charter creating a lien did not permit arrest of the vessel when the charter chose Dutch law which does not provide a lien; Ampelmann Operations B.V. v. Atlantic Oceanic UK Ltd., No. 6:24-cv-1668, 2025 U.S. Dist. LEXIS 19100 (W.D. La. Feb. 3, 2025) (Summerhays).
Ampelmann Operations agreed to provide a gangway system and pedestal accessory to Atlantic Oceanic, charterer of the ATLANTIC TONJER. The parties agreed to a time charter for the equipment that provided for delivery of the system at the Port of Fourchon, Louisiana (with a designated place of contract in Houston, Texas). The system was delivered and installed, but Ampelmann claimed that Atlantic Ocean failed to pay more than $1 million. Ampelmann filed this suit in federal court in Louisiana against Atlantic Ocean, in personam, and against the ATLANTIC TONJER, in rem. The vessel was arrested, and Atlantic Oceanic moved to vacate the arrest, arguing that the charter party selected Dutch law, which does not recognize a maritime lien for necessaries. Ampelmann argued that the contract contained a provision granting it a lien, which reflected the parties’ intent to submit to United States law with respect to the lien. However, Judge Summerhays answered that maritime liens are created by law, not contract. Therefore, he upheld the parties’ selection of Dutch law on all disputes including determining whether a maritime lien exists). As Dutch law does not recognize a maritime lien in the circumstances of this case, Judge Summerhays agreed to quash the warrant for arrest of the vessel.
Pleading that cruise line negligently failed to train its crew with respect to carrying dirty dishes in the dining room was insufficient for failing to identify a specific training policy; Lirette v. Carnival Corp., No. 24-cv-24035, 2025 U.S. Dist. LEXIS 19958 (S.D. Fla. Feb. 4, 2025) (Moreno).
Michael Lirette, a passenger on the CARNIVAL JUBILEE, was injured when a crewmember dropped dirty dishware on his head in the dining room of the ship. Lirette brought suit against the cruise line in federal court in Florida, alleging vicarious liability for negligence and negligent training. The cruise line moved to dismiss the claim for negligent training because the pleading did not identify a specific training policy or procedure to establish that the cruise line negligently trained its employees. Lirette responded by moving for leave to file a third complaint with a “new and allegedly improved” claim for negligent training, alleging that the cruise line “owed a duty to its guests, including Plaintiff, MICHAEL LIRETTE, in particular, the duty of ensuring its wait staff are properly trained to carry soiled dishes in the dining room so that passengers including Plaintiff, would not be injured by wait staff walking through the dining room.” The cruise line argued that the amended version was insufficient because it did not identify a specific training policy or procedure. Judge Moreno agreed, stating: “Nowhere does Plaintiff allege that Carnival trains its employees on how to safely traverse the dining room while handling dirty dishes.” Judge Moreno added that the pleading failed to allege that the cruise line was on notice of any dangerous condition that would give rise to a specific duty. Therefore, he dismissed the claim for negligent training.
Seaman’s failure to timely file a claim in his employer’s bankruptcy or to timely object to the reorganization plan resulted in discharge of his injury claim; In re Valaris PLC, No. 20-br-34114, 2025 Bankr. LEXIS 199 (Bankr. S.D. Tex. Feb. 4, 2025) (Isgur).
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 in the bankruptcy court 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.” See June 2024 Update.
After Bankruptcy Judge Isgur excluded Hyzy’s testimony, Bardwell filed a motion for reconsideration, asserting that the Judge should not have excluded Hyzy’s testimony as to Bardwell’s physical injuries. Bardwell argued that Hyzy was retained to opine on the future medical costs of rehabilitating his crushed hand and not to testify as to causation or damages for mental anguish. Bankruptcy Judge Isgur noted that Bardwell did not narrow the testimony at trial only to physical injuries, and he reasoned that Hyzy’s direct testimony and the reasons for which he was offered placed the issue of his diagnosis of anxiety squarely before the court. Thus, the court could consider Hyzy’s diagnosis of anxiety in the assessment of the admissibility of Hyzy’s testimony. Bankruptcy Judge Isgur stated the issue that was presented: “It is whether Hyzy reliably applied the standard principles and methods of the practice. The Court must determine whether it is accepted medical practice to not explore other potential causes of anxiety before expressing views about anxiety.” Bankruptcy Judge Isgur held that Hyzy’s failure to consider the obvious alternative factor made his opinion unreliable, reiterating his previous conclusion: “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.” See September 2024 Update.
The Bankruptcy Court then considered Bardwell’s request for relief from the discharge of Valaris in the bankruptcy proceeding (so that Bardwell could pursue a claim to the extent of Valaris’ insurance coverage). Bankruptcy Judge Isgur held a hearing and determined that Bardwell had received notice of the bankruptcy proceeding (notices were sent to the same address where Valaris sent maintenance and cure checks). As Bardwell did not file a proof of claim by the deadline and did not object to confirmation of the plan at the confirmation hearing, Judge Isgur held that the Plan of Reorganization discharged Bardwell’s claims against Valaris.
Magistrate Judge declined to recommend summary judgment on the open and obvious nature of the danger and whether the cruise line had notice of the danger with respect to the crash of a floatplane into a mountain during a tour of the Misty Fjords in Alaska; McArthur v. Holland America Line, 2:22-cv-1071 (W.D. Wash. Feb. 4, 2025) (Fricke).
Andrea McArthur, Jacquelyn Komplin, and Janet Kroll were passengers on an Alaskan cruise on Holland America’s vessel MS NIEUW AMSTERDAM. The passengers took a shore excursion, Experience Misty Fjords by Floatplane, operated by Southeast Aviation, and the floatplane crashed into a mountain twelve miles northeast of Ketchikan, Alaska, near the Misty Fjords National Monument. All of the passengers on the plane were killed, and the representatives of the passengers brought this suit in federal court in Washington against the cruise line and excursion operator. The cruise line moved for summary judgment, arguing that the risk of seaplane flights associated with clouds and rainy weather was open and obvious to a reasonable person. Magistrate Judge Fricke agreed that a reasonable person knows that there is some risk in airplane travel; however, she believed that there was a fact question on the open and obvious issue because a reasonable person could believe that pilots in this area would be able to successfully navigate in all types of weather. The cruise line also argued that the plaintiffs failed to show that the cruise line had constructive knowledge of a risk presented by the excursion involving Southeast Aviation. The plaintiffs produced evidence of previous crashes in the Ketchikan area, but none of the accidents involved Southeast Aviation. Magistrate Judge Fricke disagreed with the cruise line, noting that it was aware of the increased risk of collision in the area and that its knowledge of the risk presented by seaplane tours in the Misty Fjords area was sufficient to establish notice. Finally, Magistrate Judge Fricke rejected the argument that there was no non-speculative evidence to establish that the passengers would not have gone on the excursion had they received a warning. She answered that questions of foreseeability and causation particularly lend themselves to resolution by a jury.
Judge held that the owner of an LLC that purchased a new vessel sufficiently pleaded standing in a dispute with the seller of the vessel to avoid dismissal of his personal claims, but the judge dismissed the claims for breach of the implied warranty of good faith and unjust enrichment as duplicative of the claim for breach of contract and dismissed the claim of breach of implied warranties of merchantability and fitness as they were disclaimed in the purchase agreement; Grace’s Dream, LLC v. PB Holdco, LLC, No. 24-cv-5651, 2025 U.S. Dist. LEXIS 20512 (D.N.J. Feb. 5, 2025) (Castner).
Jacob Dayan decided to buy a new boat for fishing and to entertain family and guests. He met Zach Crane, regional Sales Director for Pursuit Boats, at Stone Harbor Marina in Stone Harbor, New Jersey, and decided to purchase a 2001 Pursuit S428 through his company, Grace’s Dream, LLC, for $1,194,044. The contract is a single page with text on both sides. Paragraph 14 on the back contains a disclaimer of all warranties, noting that warranties were solely from the manufacturer. There were problems with the vessel and after efforts to correct the problems were unsuccessful, Dayan and Grace’s Dream brought this suit against Stone Harbor and Pursuit Boats in the Superior Court of Ocean County, New Jersey, asserting claims for breach of contract, violation of the New Jersey Consumer Fraud Act, breach of the implied covenant of good faith and fair dealing, unjust enrichment, breach of implied warranties of merchantability and fitness, common-law fraud, breach of express warranties, and violation of the Magnuson Moss Warranty Act. Pursuit Boats removed the case to federal court based on federal question jurisdiction (for violation of the Magnuson Moss Warranty Act), and the defendants moved to dismiss the complaint. The defendants first argued that Dayan had no standing to bring the claim as it was his LLC that purchased the vessel. Judge Castner agreed that owners of LLCs generally do not have standing to pursue individual claims; however, she held that his allegation that the LLC purchased the vessel for his personal use and his allegation that he spoke extensively with representatives of the defendants about his personal use were sufficient to avoid dismissal. Judge Castner agreed that the claim of breach of the implied warranty of good faith and fair dealing was duplicative of the count for breach of contract, and she dismissed the claim for breach of the implied warranty. Similarly, she dismissed the claim for unjust enrichment as duplicative of the claim for breach of contract. As for the claim for breach of implied warranties of merchantability and fitness, Judge Castner noted that New Jersey law permits parties to modify or exclude these implied warranties if the writing is conspicuous. As the disclaimer of warranties was conspicuous, Judge Castner dismissed the claim for breach of implied warranties.
Federal common law (not the law selected in the arbitration clause) governed the arbitrability (under the New York Convention) of the claims of an employee of a contractor on a cruise line against the cruise line, but equitable estoppel required arbitration of the seaman’s claims against the non-signatory cruise line; Anderson v. MSC Cruises, S.A., No. 24-cv-60715, 2025 U.S. Dist. LEXIS 20731 (S.D. Fla. Feb. 5, 2025) (Strauss).
Espit Ventures hired Marlon Leonel Mitchell Anderson (from Nicaragua) to sell Dead Sea bath products aboard the cruise ship M/V MSC SEASIDE, owned and operated by MSC Cruises. Anderson fell while descending a flight of stairs on the vessel, and he brought this suit against the cruise line in Florida state court, alleging negligence under the Jones Act, unseaworthiness, tortious failure to provide maintenance and cure, failure to provide proper medical care, and adding a claim for disability. Anderson also initiated an arbitration proceeding against Espit based on the arbitration clause in his employment contract with Espit. The cruise line removed the case to federal court pursuant to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention), alleging that the claims related to an arbitration agreement, and Anderson filed an amended complaint removing the disability claim. The cruise line moved to compel arbitration, arguing that the contract between Anderson and Espit provided that the law of the flag (Malta) governed the interpretation of the contract (including who may enforce the contract) and that, under Maltese law, the cruise line could compel arbitration as a non-signatory. Anderson moved to remand the suit to state court on the ground that the cruise line was not a party to the arbitration provision, leaving the court with no basis for federal jurisdiction. Magistrate Judge Strauss first addressed the applicable law for the issue whether the cruise line (as a non-signatory) could compel arbitration. He applied federal common law to the threshold question of arbitrability. Magistrate Judge Strauss disagreed with the cruise line as to the effect of the choice-of-law provision on the arbitrability question, explaining that “the plain meaning of that provision is that Maltese law governs the substantive issues in the arbitration.” He added that the “contract is silent on what law governs interpretation of the contract as a whole, including threshold inquiries on arbitrability.” Citing the concurring opinion of Judge Tjoflat in the Outokumpu Stainless case, Magistrate Judge Strauss reasoned that federal common law should apply to the threshold question of arbitrability in a case under the New York Convention, including the application of equitable estoppel. Turning to the federal rule, Magistrate Judge Strauss stated that a non-signatory may compel arbitration when the plaintiff/signatory must rely on the terms of the written agreement to assert his claims or when the plaintiff/signatory alleges “substantially interdependent and concerted misconduct” by the signatories and non-signatories. Magistrate Judge Strauss reasoned that all of Anderson’s claims against the cruise line relied on the Espit employment contract, as he brought claims under the Jones Act and general maritime law for seamen, and the employment contract established that Anderson was a seaman. In fact, the amended complaint alleged that Anderson became the cruise line’s borrowed employee and was not provided proper medical care. At a minimum, Anderson alleged substantially interdependent and concerted misconduct by Espit and the cruise line. Therefore, equitable estoppel dictated that the cruise line could compel arbitration as a non-signatory, and Magistrate Judge Strauss recommended that the cruise line’s motion to compel arbitration be granted.
Failing to serve one of the counter-defendants in a dispute over vessel repairs resulted in dismissal of the counter-defendant; maritime lien for necessaries was extinguished when the supplier received a credit card payment for the services, even though the payment was later reversed; failure to provide countersecurity resulted in dismissal of in rem claim; Starboard Yacht Group LLC v. M/V OCTOPUSSY, No. 23-cv-61696, 2023 U.S. Dist. LEXIS 22714, 24434, 25254 (S.D. Fla. Feb. 6, 10, 11, 2025) (Singhal).
Starboard Yacht Group claims that it provided dockage and labor and materials for a refit of the M/V OCTOPUSSY (owned and operated by Contessa Marine Research) in the amount of $5,922,825.60, of which $2,219,616.48 remained unpaid. Starboard brought this action in federal court in Florida against the vessel, in rem, and Contessa Marine Research, in personam, and the vessel and Contessa Marine Research posted $400,000 in security for the release of the vessel. Contessa Marine Research filed a counterclaim against Starboard Yacht Group and its manager and principal, Charles Jake Stratmann, on October 31, 2023. Starboard Yacht Group answered the counterclaim and asserted defenses on its behalf and on behalf of Stratmann. However, no answer was filed by Stratmann as he was not served until March 7, 2024. Stratmann moved to dismiss the counterclaim as untimely served, and Contessa Marine Research responded that “Stratmann was improperly running the clock.” Concluding that Contessa had not shown good cause for failing to effectuate timely service, Judge Singhal dismissed the counterclaim against Stratmann without prejudice.
Lauderdale Marine Center filed an intervention in the suit, asserting a maritime lien for necessaries provided to the vessel during the refit in the amount of $238,483.55 (representing chargebacks for credit card payments made to Lauderdale Marine Center by Starboard Yacht Group after Starboard Yacht Group contacted its credit card companies and disputed the payments). The OCTOPUSSY and Contessa Marine Research moved to dismiss the intervention, arguing that Lauderdale Marine Center did not have a lien because the lien was extinguished when Lauderdale Marine Center was paid in full before the payments were rescinded. The vessel interests argued that “the chargebacks cannot resuscitate the extinguished maritime lien.” Judge Singhal agreed, stating that “the maritime lien ceased to exist upon payment,” and ruling that there is no cause of action in rem against the Vessel. However, Judge Singhal declined to dismiss Lauderdale Marine Center’s in personam claim against Contessa for breach of contract, finding a sufficient allegation that Starboard Yacht Group was acting as an agent for the vessel interests (Lauderdale Marine Center is seeking to attach the security for the vessel based on its in personam claim, pursuant to Supplemental Rule B).
Contessa Marine Research and the OCTOPUSSY requested countersecurity from Starboard Yacht Group and moved to dismiss the in rem claim for failing to post countersecurity under Supplemental Rule E(7). Starboard Yacht Group asked that the in rem claim be dismissed without prejudice, but it did not explain why it did not post countersecurity or request an extension. Accordingly, Judge Singhal dismissed Starboard Yacht Group’s in rem claim against the vessel with prejudice and ordered the release of the security.
Claims for theft, negligence, outrage, trespass, conspiracy, and violation of civil rights brought by manager and employee of ship repairer against owner of vessel and others who participated in repossession of the vessel from the repair yard were dismissed as untimely, but the maritime lien claim against the vessel was governed by laches and would have to be properly repleaded and brought by the party that possessed the maritime lien; Ferguson v. M/V THE PORN STAR, No. 2:23-cv-1338, 2025 U.S. Dist. LEXIS 22597 (W.D. Wash. Feb. 7, 2025) (Whitehead).
Lee Ferguson, Perry Sandberg, and Mobile Fleet Service Welding and Repair filed a Libel and Complaint in federal court in Washington, pro se and in forma pauperis, against THE PORN STAR, its owner, and a number of named and unnamed defendants, asserting that the defendants unlawfully repossessed THE PORN STAR, on which the Ferguson, Sandberg, and Mobile Fleet Service claimed a maritime lien for performing uncompensated services. On sua sponte review, Judge Whitehead noted that the claims (except for the maritime lien claim, appeared to be time barred or failed to state a claim. Therefore, he issued a show-cause order for the plaintiffs to explain why the claims should not be dismissed. See July 2024 Update.
Ferguson responded to the show-cause order primarily by arguing for recusal of Judge Whitehead and by seeking a voluntary dismissal of Mobile Fleet’s claims (which had been named in the original complaint as a “Nominal only Plaintiff”). Judge Whitehead reviewed the amended complaint filed by Ferguson (as the Managing Member of Mobile Fleet and on behalf of Sandberg, a tenant who lives in Ferguson’s home and works with Mobile Fleet), which alleged that Dann Ray Ireland left his vessel, THE PORN STAR, at Mobile Fleet’s premises for repairs that were performed by Mobile Fleet. Ireland did not pick up the vessel and did not pay for the repairs or storage and instead “repossessed” the vessel from Mobile Fleet’s premises. Ferguson alleged that Ireland was assisted by Marysville Police Officers who cited “repo law” as the basis for their participation, “threatening Ferguson with arrest when he attempted to intervene.” Besides the vessel and Ireland, the amended complaint named the City of Marysville, Washington, a police officer, and multiple “Doe” defendants related to the Police Department. Ferguson alleged claims for theft, theft of services, unlawful summons of law enforcement, negligence, outrage, trespass to land and chattels, quantum meruit, civil conspiracy for a criminal enterprise, and deprivation of federal and state constitutional rights. After denying Ferguson’s recusal request, Judge Whitehead noted that Ferguson had given no reason in response to the show-cause order to doubt the original conclusion that the claims (except for the maritime lien claim) were time-barred. Therefore, he dismissed those claims. As to the maritime lien claim, Judge Whitehead noted that it was subject to the doctrine of laches. Judge Whitehead pointed out several pleading deficiencies in the amended complaint that prevented the court from issuing a warrant for the arrest of THE PORN STAR. He explained that Mobile Fleet appeared to be the contractor that could assert the lien claim, but Mobile Fleet could not proceed pro se as a business entity. Thus, Ferguson, who is not an attorney, could not bring the suit on behalf of Mobile Fleet, nor could he dismiss it. Accordingly, Judge Whitehead granted leave for the filing of an amended complaint on behalf of Mobile Fleet that is properly verified and filed by licensed counsel. Alternatively, he ordered Ferguson and Sandberg to show cause why they have standing to file a maritime lien claim (other deficiencies included failure to verify the complaint and failure to unambiguously and plausibly assert the location of the vessel). Judge Whitehead cautioned that failure to comply would result in dismissal of the lien claim. On February 11, 2025, Chief Judge Estudillo affirmed Judge Whitehead’s denial of the motion for recusal, and on March 10, 2025, Ferguson and Sandberg filed a notice of appeal to the Ninth Circuit.
Court awarded $265,327.58 in attorney fees and costs for towing company’s bad-faith litigation seeking to recover salvage; Marine Towing & Salvage of S.W. Fl., Inc. v. One 66’ 2019 Sabre Dirigo, No. 2:22-cv-346, 2025 U.S. Dist. LEXIS 22719 (M.D. Fla. Feb. 7, 2025) (Dudek), recommendation adopted, 2025 U.S. Dist. LEXIS 31961 (M.D. Fla. Feb. 24, 2025) (Chappell).
Eyrie Holdings is owner of a 66’ Sabre Dirigo known as the M/V TERRY LEAH (a/k/a M/V WHIRLAWAY). On April 8, 2022, the vessel was sailing around Estero Island, Florida with the intent to return to Tarpon Point Marina in Cape Coral, Florida with Randall Pittman as captain, Monty Biggs as deckhand, and Mary Pittman as a passenger. All three have significant sailing experience. There were no problems until the boat ran over a sand bar at Big Carlos Pass. Biggs checked the engine room and confirmed that no water was entering the boat. Randall was still able to maneuver the boat with the port engine, and he dropped the anchor to determine what to do next after discovering that the starboard engine was inoperable (the starboard propeller was damaged from going through the sand). The boat was in ten feet of water with five feet of water under the bottom of the boat. The seas were choppy, but the waves were not large and the anchor was holding. The sailors discussed whether to return home (using the port engine) or to call for a tow. The sailors did not believe the boat was in peril (they did not wear life jackets), and they called TowBoat US for assistance. The details of the call are disputed, with the dispatcher testifying that Biggs was frantic and the boat was blowing toward the beach. TowBoat U.S. dispatched Captain Stephen Lilly to respond, and he did not mention salvage when he threw a line to Biggs. The TERRY LEAH lost its anchor during the process, and Lilly tried to retrieve it twice before it was abandoned. The TERRY LEAH was successfully towed to shore, and the Pittmans left. Lilly then brought an iPad to the TERRY LEAH and asked Biggs to sign a delivery receipt that the vessel was brought to the dock safely. Biggs signed it and asked for a copy, but Lilly did not provide a copy. The owner of the tug, Marine Towing & Salvage, later produced a “Marine Salvage Contract” with Biggs’ name misspelled and a second signature that Biggs denied was his (because of the tremors in his hands). Three days after the event, Rich Paul, owner of Marine Towing & Salvage, called Briggs and demanded $500,000 for the services provided by the tug. He later demanded $375,000 as security in lieu of arrest of the vessel, asserting that the TERRY LEAH was aground when Lilly arrived. Randall deposited that sum into a trust account to prevent arrest of the vessel, and Marine Towing & Salvage brought this in rem action against the TERRY LEAH in federal court in Florida seeking a salvage award. The case was tried to Judge Chappell, who found that there was no peril because the boat was not blowing toward the beach and the sailors could have maneuvered the boat if the need arose. She explained that Marine Towing & Salvage relied almost exclusively on “Lilly’s exaggerated version of events,” but his testimony “contradicts nearly all other evidence.” Judge Chappell then addressed the counterclaim from the owner of the TERRY LEAH for fraudulent inducement and fraud, bad faith, overreaching, and vexatious litigation. Judge Chappell noted that the owner had not presented evidence of damages and appeared to present the counterclaim as a fee-shifting mechanism to bypass admiralty’s rule that the prevailing party is not generally entitled to recover attorney fees. Judge Chappell agreed that “Plaintiff’s bad faith overreaching drove this dispute from start to finish,” reasoning: “This is a case where ‘a vessel owner refused to pay the exorbitant and unjustified demand of a salvor and was forced to go to trial.’” Therefore, she held that the owner of the TERRY LEAH was entitled to recover attorney fees and costs. See February 2025 Update.
The defendants sought fees of $360,997 and costs of $30,679.53 based on rates of $575 per hour for partners and $375 per hour for associates. Magistrate Judge Dudek agreed that the rates were reasonable, considering the complexity of the case and the experience of counsel who specialize in maritime law, and he also awarded fees at the rate of $200 per hour for a recent law school graduate who clerked for the firm while awaiting admission to the Florida Bar. Magistrate Judge Dudek did consider the claim for 715.8 hours for six attorneys to be excessive, and he recommended a reduction of 35%. Magistrate Judge Dudek did not recommend any reduction in the costs. Accordingly, he recommended an award of $234,658.05 in fees and $30,679.53 in costs (a total of $265,327.58). Neither party objected to the recommendation, and Judge Chappell adopted the recommendation.
Claims of Italian citizen for asbestos exposure while working as a seaman on Liberian merchant vessels owned by Liberian subsidiaries of American companies were governed by American law and were not dismissed for forum non conveniens; seaman produced sufficient evidence of causation to avoid summary judgment on his Jones Act claim, but he failed to satisfy the maritime causation standard against a pump supplier; court declined to dismiss the seaman’s punitive damage claims, but the claims on behalf of his wife who died from mesothelioma from exposure to asbestos while laundering his clothes were dismissed for failing to satisfy the nexus test for admiralty jurisdiction; Salvemini v. Air & Liquid Systems Corp., No. 1:22-cv-977, 2025 U.S. Dist. LEXIS 22804 (D. Del. Feb. 7, 2025) (Fallon), recommendation adopted, 2025 U.S. Dist. LEXIS 33437 (D. Del. Feb. 25, 2025) (Noreika).
Michele Salvemini (an Italian citizen) claims that he was exposed to asbestos while working as a marine engineer/seaman on merchant vessels and while employed as a mechanical worker at an Italian shipyard working on U.S. Navy vessels. He claims that his spouse, Luciana Dell’Accio, was exposed to asbestos while laundering his asbestos-contaminated clothing and died from mesothelioma. Salvemini brought suit in federal court in Delaware against vessel defendants and suppliers of products containing asbestos, on his own behalf and as Dell’Accio’s surviving spouse. One of the suppliers, Buffalo Pumps, and two vessel defendants, ConocoPhillips and Hess, moved for summary judgment. Salvemini claimed exposure to asbestos in Buffalo Pumps’ products on merchant vessels and on Naval vessels on which he worked in the shipyard. Salvemini argued that he only had to satisfy the “featherweight” causation standard of causation in a Jones Act claim, but Magistrate Judge Fallon disagreed, answering that Salvemini was not bringing a Jones Act case against Buffalo Pumps. Instead, she applied the substantial-factor test for causation from the general maritime law. Although the evidence established the presence of Buffalo Pumps’ products on the ships, Salvemini was unable to provide any certainty about the frequency, regularity, and proximity of his exposure to Buffalo Pumps’ products (Judge Fallon also recommended rejection of a duty to warn under DeVries for the same reason). The vessel defendants moved for summary judgment on the ground that the Jones Act and American maritime law did not apply to Salvemini’s claims based on the Lauritzen/Rhoditis factors. The defendants cited the fact that Salvemini is Italian, was hired pursuant to employment contracts in Italy, and was serving on Liberian ships owned by Liberian subsidiaries of American companies. However, as some of the exposure occurred in American ports and as the defendants maintained their base of operations in the United States, Magistrate Judge Fallon concluded that application of American law was reasonable. Magistrate Judge Fallon then recommended that there was sufficient evidence of exposure to asbestos on the defendants’ vessels based on Salvemini’s testimony that he breathed in dust containing asbestos while removing gaskets while working on the defendants’ vessels. However, Magistrate Judge Fallon recommended that the wrongful death claim under the Jones Act on behalf of Dell’Accio be denied because she was not a seaman and because the test for admiralty jurisdiction was not satisfied with respect to the claims for her wrongful death under the general maritime law. Salvemini cited Grubart (damage to buildings in downtown Chicago resulting from work on the Chicago River), but he did not establish how the exposure in the decedent’s home in Italy had a potentially disruptive effect on maritime commerce or how the activity giving rise to the incident had a substantial relationship to traditional activity. Accordingly, Magistrate Judge Fallon recommended that the claims related to the death of Dell’Accio be dismissed. The vessel defendants also argued that Salvemini’s claims for punitive damages should be dismissed based on Batterton, but Magistrate Judge Fallon stated that Batterton applies solely to unseaworthiness claims and that punitive damages are available in claims for negligence and strict liability [contrary to Scarborough v. Clemco Indus., 391 F.3d 660 (5th Cir. 2004)]. Finally, Magistrate Judge Fallon recommended denial of the vessel defendants’ motion to dismiss on the grounds of forum non conveniens. As no party objected to the recommendations, Judge Noreika adopted them.
Judge in the DALI/Key Bridge limitation action declined to lift the stay to allow claimants bringing contract and environmental claims (that may not be subject to limitation) to pursue them in state court, maintaining the concursus through the determination of the right to limit liability; In re Grace Ocean Private Ltd., No. 1:24-cv-941, 2025 U.S. Dist. LEXIS 22805 (D. Md. Feb. 7, 2025) (Bredar).
This litigation arises from the allision between the DALI and the Francis Scott Key Bridge. The owner and manager of the DALI, Grace Ocean Private and Synergy Marine, brought this action seeking exoneration/limitation in federal court in Maryland, and Judge Bredar issued a Protective Order governing the use of confidential information in the litigation. The parties sought to amend the protective order to accommodate the concerns of the National Transportation Safety Board, which is conducting an investigation of the allision, that the Protective Order did not adequately cover its documents. Although Judge Bredar expressed his intent to accommodate the interests of the NTSB to the extent feasible, he balanced the interests of the parties and NTSB with the public’s presumptive right of access to the judicial process. He explained that the proposal would “permit parties to file documents wholly under seal, without any publicly viewable version, so long as the documents contain any confidential information.” Judge Bredar warned that “any request for a protective order that contemplates wholesale sealing of documents—as opposed to the application of carefully limited redactions—will likely be denied.” Therefore, he denied the request without prejudice. See February 2025 Update.
After the limitation action was filed, Judge Bredar accepted security of $43,671,000 and issued a stay of litigation against the petitioners and the vessel arising from the allision (except in the limitation action). Claims were brought on behalf of individuals and putative classes. The United States brought a claim but subsequently reached a settlement with the petitioners. Motions were then filed by the State of Maryland, Maryland Transportation Authority, Maryland Port Administration, Maryland Department of the Environment, and ACE American Insurance Co., requesting that the stay be lifted to permit the State claimants and ACE (asserting subrogation for payments to the State claimants) to pursue contractual and statutory claims outside of the limitation action as their claims fell outside of the scope of the limitation statute. The claimants argued that they were asserting claims for breach of contract and pursuant to state environmental statutes that are not subject to limitation, and the vessel interests responded that policy considerations favored maintaining the concursus of claims. Judge Bredar assumed arguendo that the claims fell outside the scope of the limitation statute, but he decided to exercise his discretion to decline to lift the stay. First, he believed that it was important to maintain the concursus because it protects not only the vessel interests but claimants, to “ensure that all claimants, not just a favored few, will come in on an equal footing to obtain a pro rata share of their damages.” Judge Bredar was also concerned about the risk of inconsistent judgments, reasoning that findings in separate litigation could have issue-preclusive effect in the limitation proceeding, which would undermine the exclusive jurisdiction of the federal court. He added that the claimants had not presented any stipulations that would adequately protect the vessel interests’ right to seek limitation. He added that he did not “consider it equitable to set certain Claimants loose to pursue the merits of their claims—and, perhaps, obtain favorable judgments—while all other Claimants are required to wait and abide by the schedule set by this Court,” particularly when it was conceivable that there could be insufficient insurance to satisfy all losses. Finally, Judge Bredar explained that he was pursuing a practical, pragmatic procedure directed to determination of the critical limitation issue. He did not want parallel proceedings to interfere with this endeavor. If limitation is denied, he expected that he would then “set Claimants free to pursue any remaining claims in any court of competent jurisdiction.”
Allegation in complaint that alarm sounded when the luggage on the escalator became stuck during the disembarkation from the cruise ship was insufficient to provide notice of a dangerous condition to the cruise line, and the suit was dismissed without leave to amend; Reyes v. Royal Caribbean Cruises Ltd., No. 1:24-cv-20542, 2025 U.S. Dist. LEXIS 32322 (S.D. Fla. Feb. 7, 2025) (Martinez).
Humberto Reyes, a passenger on the FREEDOM OF THE SEAS, disembarked from the vessel in Miami. He was directed by employees of the cruise line to board an escalator in the terminal (with luggage) to proceed to a lower floor for the immigration checkpoint and exits. The luggage of a passenger in front of Reyes on the escalator became stuck, and passengers fell backward, landing on Reyes. Reyes brought this suit against the cruise line in federal court in Florida, and the cruise line moved to dismiss the complaint on the ground that it did not sufficiently allege notice of the dangerous condition. Judge Martinez agreed that the complaint did not provide facts establishing the notice of the cruise line. He noted that the only allegation that could be construed as demonstrating notice was that the alarms sounded and the cruise line failed to stop the escalator from continuing to move. Although Judge Martinez was not inclined to strain to make an argument that the passenger failed to make, he added that there were no facts alleged as to how long the alarms sounded and whether the cruise line had time to correct the condition. Therefore, Judge Martinez dismissed the complaint. In deciding whether to allow an amendment, Judge Martinez noted that Reyes had amended his complaint to allege that the cruise line created a dangerous condition by overloading the escalators with passengers and luggage and that the cruise line should have known that overloading the escalators created a dangerous condition. Judge Ramirez explained that the “minimal additions” were “legal conclusion masquerading as fact” and would not prevent dismissal. Consequently, as Reyes failed to correct the deficiencies in the complaint, Judge Martinez dismissed the complaint without leave to amend. Reyes filed a notice of appeal to the Eleventh Circuit on February 14, 2025.
Neither the United States, nor the shipyard performing work on the vessel, was liable for the death of a Navy employee who was assigned to provide security for the vessel during a complex overhaul; Sandor v. United States, No. 4:24-cv-98, 2025 U.S. Dist. LEXIS 23831 (E.D. Va. Feb. 10, 2025) (Walker).
Xavier Mitchell-Sandor enlisted in the Navy and, after completing training, was stationed on the USS GEORGE WASHINGTON, which was drydocked in Newport News, Virginia for a complex overhaul performed by Huntington Ingalls. Mitchell-Sandor was assigned to provide security for the GEORGE WASHINGTON, and the commander of the vessel ordered the workers to live aboard the vessel. Mitchell-Sandor experienced many difficulties. He had trouble sleeping from the noise of the construction, he had to walk long distances for food and essentials, and he routinely lost access to electricity, heating, ventilation, air conditioning, and hot water. He did not have access to television or internet on the vessel, and there was a lengthy waiting period for medical care. He feared reporting complaints about the living conditions, and he did not feel that he could seek mental health treatment for fear of limitations in his future career opportunities. Mitchell-Sandor died by suicide on the vessel (using a Navy-issued pistol), and his father brought this wrongful death action in federal court in Virginia against Huntington Ingalls and the United States (under the Federal Tort Claims Act and the Suits in Admiralty Act). The United States moved to dismiss the claims for lack of jurisdiction, arguing that tort claims brought by servicemembers against the United States are barred under the FTCA and the SIAA. This defense implicated the “incident to service test,” asking the court to determine whether the suit “would call into question military discipline and decisionmaking [and would] require judicial inquiry into, and hence intrusion upon, military matters.” Judge Walker reasoned that the complaints against the United States arose from Mitchell-Sandor’s orders to live and serve on the GEORGE WASHINGTON and, therefore, arose in the course of activity incident to service. Accordingly, Judge Walker held that the claims were barred. Huntington Ingalls moved to dismiss the negligence claim brought against it under Virginia law, and Judge Walker noted that the plaintiff could not assert a negligence claim for breach of any duty that Huntington Ingalls accepted by contract (obligation to provide living accommodations and services for the workers). Judge Walker then considered the duty owed for premises liability, and he believed that the complaint plausibly argued that Huntington Ingalls possessed the GEORGE WASHINGTON so as to owe a duty under Virginia premises liability law. He then assessed whether Mitchell-Sandor was an invitee or a licensee, and Judge Walker agreed that Mitchell-Sandor was an invitee because he lived aboard the vessel for the work on the vessel and not for his own convenience or for a social purpose. However, Mitchell-Sandor lived on the vessel at the direction of the Navy, not Huntington Ingalls. Therefore, the United States owed the duty to the invitee, not Huntington Ingalls, and the United States was immune from suit. Therefore, Judge Walker dismissed the suit against Huntington Ingalls.
Seaman’s employer, which established a McCorpen defense to the seaman’s maintenance and cure claim for PTSD (based on the seaman’s denial of depression, anxiety, or other psychiatric disease at the time of his employment), also established a McCorpen defense with respect to the seaman’s neck, back, and left lower extremity injuries; Provost v. Cheramie Marine, LLC, No. 24-cv-1735, 2025 U.S. Dist. LEXIS 24080 (E.D. La. Feb. 11, 2025) (Vance).
When Christian Provost applied for a job as a deckhand on the M/V MARIE CHERAMIE, he filled a medical questionnaire and marked that he did not have and did not previously have depression, anxiety, a history of suicide attempts, or other psychiatric disease, and he denied any hospitalization. He was hired by Cheramie Marine and crushed his hand in an accident while disentangling chains between ship fenders. He brought this suit in federal court in Louisiana against Cheramie Marine, seeking to recover under the Jones Act and under the general maritime law for unseaworthiness and maintenance and cure. He claimed physical injuries and psychological injuries including post-traumatic stress disorder, depression, and anxiety. Cheramie Marine moved for partial summary judgment on Provost’s maintenance and cure claim for the psychological injuries, asserting a McCorpen defense that Provost willfully concealed material medical facts. Judge Vance addressed the three elements of the defense and noted that Provost did not contest that he had intentionally concealed his pre-existing psychological conditions, admitting that he had a history of suicidality, depression, anxiety, and psychiatric hospitalization that had not been disclosed. Provost also did not contest the materiality of the conditions, admitting that Cheramie Marine would not have cleared him for duty if he had disclosed his history of anxiety and depression and would not have hired him if he had disclosed his prior suicide attempt. The issue presented to the court was the extent of the causal link between the concealed conditions and the disabilities suffered in the accident on the MARIE CHERAMIE. Judge Vance began with the proposition that the Fifth Circuit finds a causal link when the injuries involve the same body party. Cheramie Marine argued that the “same body party” test precluded recovery of maintenance and cure for any psychological injuries that Provost suffered while working, and Provost agreed that there was a clear link between his pre-existing anxiety and depression and the anxiety and depression that he claims to have sustained from the accident. However, Provost argued that other psychological ailments from which he suffers are unrelated to his pre-existing condition, including complex regional pain syndrome, neurogenic thoracic outlet syndrome of his right brachial plexus, and PTSD. Cheramie Marine agreed that the claims for complex regional pain syndrome and neurogenic thoracic outlet syndrome are physical pain conditions that were not subject of its motion for partial summary judgment. However, it argued that there was a causal link with the PTSD claim. Judge Vance was “uneasy” about applying the same body part test to psychiatric conditions, noting that there are “well over 250 psychiatric disorders ranging from eating disorders to schizophrenia to agoraphobia and narcolepsy.” However, she found a sufficient relationship in this case between Provost’s history of anxiety and depression and his claimed PTSD to grant summary judgment on the McCorpen defense, cautioning that “the Court need not determine whether the ‘same body part’ test forecloses maintenance and cure for all psychological injuries when a plaintiff fails to disclose pre-existing psychological conditions.” See March 2025 Update.
Provost also claimed that his accident caused him physical injuries to his neck, back, shoulder, and knee. He had denied a history of injuries to these areas in his medical questionnaire, although he had an extensive history of injuries. Cheramie Marine moved for partial summary judgment on Provost’s maintenance and cure claim for injuries to his neck, back, hip, and knee, and Provost did not oppose the motion. Judge Vance held that Cheramie Marine had established the elements of a willful concealment defense, intentional concealment, materiality, and a causal link, and she dismissed Provost’s claims for maintenance and cure with respect to his neck, back and left leg (hip and knee).
Carrier’s pleading was insufficient to state a claim for breach of contract against the consignee of the cargo; Hapag-Lloyd (America), LLC v. Indorama Ventures Alphapet Holdings, Inc., No. 23-cv-1016, 2025 U.S. Dist. LEXIS 24297 (D. Del. Feb. 11, 2025) (Hall).
Hapag-Lloyd filed this suit in federal court in Delaware with “bare bones” allegations seeking to recover for breach of contract for transportation of cargo “for the benefit of” Indorama Ventures Alphapet Holdings under contracts of carriage or service contracts between the parties. Indorama Ventures moved to dismiss the complaint, arguing that it did not state a claim because it did not name the parties to the contracts or plausibly allege that the parties were in contractual privity. Hapag-Lloyd responded by providing a Sea Waybill and a copy of its terms and conditions on which Indorama Ventures was listed as the consignee, contending that the documents made Indorama Ventures a “Merchant” under the bill of lading who was liable for amounts due for the carriage. Judge Hall answered that the complaint did not plead any factual allegations to establish how Indorama Ventures was liable or bound by the terms of the bill of lading, and she dismissed the complaint (but she gave Hapag-Lloyd leave to amend the complaint).
Injury suit in state court arising from a boating accident was not removable based on admiralty jurisdiction or federal question jurisdiction (arising under the Federal Boat Safety Act or the Inland Navigation Rules); Klomp v. Frost, No. 1:24-cv-1507, 2025 U.S. Dist. LEXIS 24606 (E.D. Cal. Feb. 11, 2025) (Oberto).
Neva Marlene Klomp was a passenger in a boat operated by David B. Frost on Pine Flat Lake in Fresno County, California (navigable waters owned and operated by the Army Corps of Engineers). The boat struck a log or other debris, resulting in a fatal injury to Klomp. Klomp’s beneficiaries brought this suit against Frost in the Superior Court of Fresno County, California, and Frost removed the action to federal court based on original admiralty jurisdiction and federal question jurisdiction arising under the Federal Boat Safety Act and the Inland Navigation Rules. The plaintiffs moved to remand the case, and Magistrate Judge Oberto agreed that the case was not removable. He accepted the argument that “when a plaintiff brings a maritime cause of action against a person in state court, a federal court lacks admiralty jurisdiction over that claim,” following the majority of district courts. As to the federal statutes, Magistrate Judge Oberto noted that the plaintiffs had alleged causes of action under state law and had not made claims under the Federal Boat Safety Act or the Inland Navigation Rules. Therefore, there was no federal-question removal jurisdiction. Magistrate Judge Oberto declined to award attorney fees for the response to the removal, reasoning that the removal was not objectively unreasonable: “While the Court agrees with the majority rule regarding the need for an independent jurisdictional basis for cases involving general maritime law that have been originally filed in state court, there are cases that hold to the contrary.”
Judge denied cruise line’s motion to compel arbitration of claims of contractor’s employee as the cruise line was not a party to the worker’s employment contract and was not a third-party beneficiary of the contract or closely affiliated with the contractor; Rodriguez v. NCL (Bahamas) Ltd., No. 24-cv-23695, 2025 U.S. Dist. LEXIS 25257 (S.D. Fla. Feb. 12, 2025) (Bloom).
Maria Isabel Rodriguez was employed by OneSpaWorld as a massage therapist on the NORWEGIAN GETAWAY. Rodriguez asserts that she needed medical treatment while serving on the vessel, but the medical staff on the vessel failed to properly and timely diagnose and treat her illness. Rodriguez claims that her condition was finally diagnosed at a land facility, but the cruise line refused to provide her with recommended medical treatment when she returned to the ship, and she was required to return to her home country of Colombia for cheaper medical care that was substandard and caused her condition to worsen. Rodriguez brought this suit against the cruise line in federal court in Florida, and the cruise line moved to compel arbitration based on the arbitration clause in Rodriguez’s employment contract with OneSpaWorld. The cruise line argued that it was an intended third-party beneficiary of the contract and that it was so closely affiliated with OneSpaWorld under agency principles that it should be able to enforce the agreement as if it were OneSpaWorld. Judge Bloom disagreed. She found only a single passing reference naming the cruise line plus a few implied references to the vessel. The primary focus and objective of the contract was to establish the obligations between OneSpaWorld and Rodriguez. Judge Bloom explained that the fact that the cruise line may have benefitted from Rodriguez’s services did not mean that the cruise line became an intended third-party beneficiary. Judge Bloom found no provision in the contract suggesting that the intent was to confer rights on the cruise line. Similarly, the language of the arbitration clause applied to the parties to the contract, the company (OneSpaWorld), and the employee. Although the clause applied to claims for unseaworthiness and failure to treat, which only applied to the cruise line, Judge Bloom stated that “the inclusion of this type of claim in the arbitration clause does not necessarily mean that the parties extended the right to [arbitrate] to any individuals or entities that would be liable for such claims.” She added that it was possible that the parties did not know that those claims are not viable against non-shipowners. Finally, Judge Bloom rejected the cruise line’s argument that there is a close affiliation between OneSpaWorld and the cruise line (the cruise line provided crew quarters and medical care, trained the employees on boat drills, and had the right to disapprove of employees on its ship). She answered that “simply agreeing to work together and provide training and resources to one another is not sufficient evidence of control, but rather evidence of a normal symbiotic business relationship.” Accordingly, Judge Bloom denied the motion to compel arbitration.
Judge applied objective rule in determining that seaman intentionally concealed his prior back problems, resulting in denial of maintenance and cure; Golden Alaska Seafoods LLC v. Carello, No. 23-cv-1778, 2025 U.S. Dist. LEXIS 25841 (W.D. Wash. Feb. 12, 2025) (Robart).
On February 23, 2023, Devin Anthony Carello signed a contract with Golden Alaska Seafoods to work as a prep cook on the GOLDEN ALASKA. On March 4, 2023, he reported an injury to his “center back,” in an incident described as “boat rolled and fell back, foot slipped off step to cooler trying to catch myself and slide forward/to right side.” The next day he reported: “bent over to lift bus tub of fruit off cooler floor and felt hard stabbing pain in back and spasm feeling up/down spinal area, lost breath of a split second & yelled w/pain.” On his pre-employment health questionnaire, Carello denied any prior medical problems except for a concussion, and Golden Alaska paid maintenance and cure before learning that Carello had a history of back problems before he applied for work on the GOLDEN ALASKA. Golden Alaska then brought this suit in federal court in Washington, seeking a declaratory judgment that it did not owe maintenance and cure and seeking an offset against any future award of damages. Golden Alaska moved for summary judgment on its willful concealment claim, and Judge Robart considered the three elements for the defense: intentional concealment, causal relationship between the undisclosed condition and the impairment for which the worker seeks compensation, and materiality to the decision to hire the worker. Judge Robart had little trouble finding that that the causality element was met because the back problems were to the same area of his body and finding that the materiality element was satisfied from the employer’s testimony that it relied on Carello’s answers. Carello disputed that his failure to disclose was intentional, arguing that the employer must prove that the seaman subjectively believed that the employer would consider the undisclosed medical condition was important. Golden Alaska argued that there is an objective test for this element, and Judge Robart agreed with Golden Alaska, noting that the Ninth Circuit and other courts (Fifth Circuit) have rejected a requirement for a subjective intent. Applying the objective test, Judge Robart held that Carello’s failure to disclose his prior back problems constituted intentional concealment and that Golden Alaska was under no obligation to pay maintenance and cure to Carello. Golden Alaska then requested affirmative recovery from Carello for the amount of maintenance and cure payments it had already made, but Judge Robart answered that it had not pleaded for restitution and that the time to amend pleadings had passed. Judge Robart did direct the parties to show cause why the court should not grant summary judgment that any future award of damages may be offset by the amount paid for maintenance and cure.
Vessel service provider sufficiently alleged authorized work on a vessel to permit a maritime lien and arrest of the vessel despite argument that the authorization came from a contract for sale of the vessel; owner’s counterclaim against the provider should be based on wrongful attachment, not conversion; owner did not state a claim under the state unfair practices act; Mirage Yacht, Inc. v. A 2013 Marquis Yachts Recreational Vessel, No. 24-cv-21095, 2025 U.S. Dist. LEXIS 26216 (S.D. Fla. Feb. 12, 2025) (D’Angelo), recommendation adopted, 2025 U.S. Dist. LEXIS 45779 (S.D. Fla. Mar. 13, 2025) (Williams).
This litigation involves work on a 63-foot recreational vessel following damage sustained during Hurricane Ian. Mirage Yacht, a vessel service provider in Miami, Florida, claims that Jens Friedrich Karl Goetz authorized Mirage Yacht to recover the vessel from its position of peril after the Hurricane and to provide maintenance and storage for the vessel. On May 1, 2023, Mirage Yacht recovered the vessel and transported it to the Mirage Yacht facility in Miami where it provided services for the safekeeping of the vessel, including some repairs. On January 29, 2024, the vessel was transported to Norseman Shipbuilding and Boatyard in Miami for an emergency haul out, and Mirage Yacht asserted that it was responsible for the costs at Norseman Shipbuilding. Goetz did not pay for the services performed by Mirage Yacht, and Mirage Yacht brought this suit against the vessel in federal court in Florida, resulting in the arrest of the vessel. Goetz denied that he authorized Mirage Yacht to perform the work, and he sold the vessel to KTM Venture Group. KTM Venture brought claims against Mirage Yacht (and Norseman), and the parties filed motions to dismiss. KTM Venture argued that Mirage Yacht had no maritime lien as Goetz had not authorized any work and that any entitlement on behalf of Mirage Yacht arose from the contract for the sale of the vessel of the vessel, which is a non-maritime contract. Magistrate Judge D’Angelo disagreed, reasoning that the agreement did not demonstrate an agreement for Mirage Yacht to provide the necessaries and that Mirage Yacht alleged a separate agreement that is maritime in nature. Therefore, the court had admiralty jurisdiction over the lien claim (the lien was not extinguished when Mirage Yacht unsuccessfully tried to buy the vessel). And, although there were disputes as to the authorization for the work and the amount asserted for the lien, the evidence presented was sufficient at this stage of the proceedings to allow the lien claim to proceed. Magistrate Judge D’Angelo then addressed the counterclaims of KTM Venture against Mirage Yacht for conversion and for breach of the Florida Deceptive and Unfair Trade Practices Act. As the Eleventh Circuit has foreclosed a conversion claim in place of a claim for wrongful attachment, Magistrate Judge D’Angelo dismissed KTM Venture’s conversion claim; however, she granted leave for KTM Ventures to file an amended claim for wrongful attachment. As Goetz and KTM Ventures denied seeking any services from Mirage Yacht, Magistrate Judge D’Angelo denied that they were consumers who could bring an action under the FDUTPA. Finally, Magistrate Judge D’Angelo considered Norseman’s motion to dismiss KTM Venture’s claims for aiding and abetting conversion and fraud. Norseman and KTM Venture entered into a settlement agreement when KTM Venture paid Norseman’s invoice in order to take possession of the vessel. Magistrate Judge D’Angelo believed that the release was broad enough to encompass the claims, and she added that there could be no aiding and abetting to the conversion claim that was not a valid claim. Likewise, the fraud claim failed because there were no allegations that Norseman knew about an impending arrest of the vessel. KTM Venture objected to Magistrate Judge D’Angelo’s recommendations, but Judge Williams rejected the objections as a rehashing of the arguments already made.
Repair contractor on offshore platform did not have a duty to inspect for defective conditions outside of the work it was contracted to perform and was entitled to summary judgment on claim for injury to a worker; platform owner was not entitled to summary judgment on a premises liability theory when its policy required a guardrail and it knew that there was no guardrail; Salazar v. Bay, Ltd., No. 2:22-cv-306, 2025 U.S. Dist. LEXIS 38322 (S.D. Tex. Feb. 14, 2025) (Hampton), recommendation adopted, 2025 U.S. Dist. LEXIS 37841 (S.D. Tex. Mar. 3, 2025) (Morales).
Christopher Salazar was injured while working on a platform in the West Delta area of the outer Continental Shelf of the Gulf of America, off the coast of Louisiana, when he fell from an uneven and unsecured walkway into the Gulf. He brought suit in the County Court of Nueces County, Texas against the platform owners and operator, Shell Offshore, BP, and Shell Pipeline; the contractor hired to perform welding and fabrication services on the platform, Chet Morrison Contractors; and others, and the case was removed to federal court based on jurisdiction under the Outer Continental Shelf Lands Act. Salazar alleged that the Shell/BP defendants and Chet Morrison were liable for failing to correct or warn of an unreasonably dangerous condition, and that they were negligent per se for failing to adhere to regulations and industry standards for the installation and maintenance of guardrails. Chet Morrison and Shell Offshore/BP moved for summary judgment. Chet Morrison argued that its work on the platform did not involve the uneven grating or any missing guardrail, but Salazar argued that Chet Morrison had a duty to inspect the platform, identify defects and hazards, and report those problems to Shell. However, the contract with Chet Morrison required performing construction services outlined in specific purchase orders. The contract did not require Chet Morrison to inspect the platform to inform Shell of defects. The contract did provide that Chet Morrison would manage health, safety, and security for the risks associated with the scope of its work, but that obligation did not extend past the work it performed. Finally, although every contractor on the platform had a responsibility to bring up hazards that they found, that did not create a duty to inspect for hazards. Therefore, Magistrate Judge Hampton recommended that summary judgment be granted to Chet Morrison. Shell and BP moved for summary judgment, arguing that the defective condition was caused by contractor Gulf Island and that Shell and BP are not liable for the work of the contractor. Salazar argued that the independent contractor rule did not insulate Shell and BP from premises liability. He cited evidence that Shell’s policies dictated that there should be a guardrail on this open-sided walkway. As Shell Offshore was aware of the lack of a guardrail, Magistrate Judge Hampton declined to grant summary judgment to Shell Offshore, but she recommended that summary judgment be granted to BP. There were no objections to the recommendations, and Judge Morales adopted them.
Magistrate Judge granted request of third-party defendants (passing vessel) in case involving contact between docked vessel and dock to transfer case to the court where the incident occurred based on the convenience of the parties; Pabtex, Inc. v. M/V ARUNA CENGIZ, No. 3:24-cv-84, 2025 U.S. Dist. LEXIS 28094 (S.D. Tex. Feb. 18, 2025) (Edison).
This litigation arises from contact between the M/V ARUNA CENGIZ, which was docked at the Pabtex dock located on the Sabine River in Port Arthur, Texas, and the ship loader on the dock. Pabtex brought this suit against the ARUNA CENGIZ in the Galveston Division of the Southern District of Texas because it believed the M/V ARUNA CENGIZ was within that district, but the vessel left the district before it could be arrested. Star Maritime filed a claim of owner for the ARUNA CENGIZ (having provided a letter of undertaking), and it brought a third-party claim against the M/T EAGLE LOUISIANA and its owner, alleging that the EAGLE LOUISIANA caused a surge that resulted in the ARUNA CENGIZ’s movement at the berth and contact with the ship loader on the dock. The third-party defendants then moved to transfer the case under Section 1404(a) to the Eastern District of Texas, where the incident occurred, but the ARUNA defendants opposed the transfer, arguing that third-party defendants do not have the right to seek a venue transfer under Section 1404(a) and that the third-party defendants had not shown that the Eastern District of Texas was more convenient than the Southern District of Texas. Magistrate Judge Edison recognized that third-party defendants have no standing to argue that venue is improper, but he answered that a motion to transfer pursuant to Section 1404(a) is not based on improper venue but instead on the convenience of the parties. Therefore, he held that the third-party defendants could request the court to exercise its discretion to transfer the case (adding that the court could also transfer the case sua sponte). Weighing the private and public factors, Magistrate Judge Edison held that the case should be transferred.
Specific limitation in the sea waybills for cargo that is palletized for the convenience of the merchant governed over the number of cartons listed under the Number of Packages heading on the front of the sea waybills in determining the number of COGSA packages; HDI Global Insurance Co. v. Kuehne + Nagel, Inc., No. 23-cv-6351, 2025 U.S. Dist. LEXIS 23714 (S.D.N.Y. Feb. 19, 2025) (Liman).
This case involves a cargo of electrical wire harnesses scheduled to be transported from Barcelona, Spain to Charleston, South Carolina for shipper Mahle Behr Charleston. Mahle Behr engaged Kuehne + Nagle, a non-vessel operating common carrier for the carriage, and Kuehne + Nagle issued four sea waybills for the cargo. The shipper packed the harnesses into cartons and onto pallets, and Kuehne + Nagel picked up the pallets and transported them to Barcelona where they were loaded into containers for the ocean shipment. One of the containers fell into the water while it was being loaded in Barcelona, and cargo insurer HDI Global paid for the damage. HDI Global brought this suit in federal court in New York against Kuehne + Nagle, and the defendant moved for summary judgment based on the package limitation in the Carriage of Goods by Sea Act. The parties agreed that the package limitation applied; however, they disagreed as to the number of COGSA packages. HDI Global argued that there were 480 packages based on the listing in the waybills of 480 packages under the heading “Number of Packages” (there were 480 cartons). Kuehne + Nagel argued that there were 24 COGSA packages because the waybills described that the packages were “into” 24 pallets. Although HDI Global argued that the list of the number of packages was dispositive, Kuehne + Nagel argued that there was plain contrary intent with the statement that the packages were “into” 24 pallets. As neither party provided satisfactory evidence of the contemporaneous understanding of the document consistent with the wording or significant evidence of industry practice, and as the case was set for a non-jury trial, Judge Liman declined to decide the issue on a motion for summary judgment and awaited “further elucidation” at the bench trial. See October 2024 Update.
Judge Liman asked the parties to advise if they were prepared to stipulate to liability so that trial could proceed with respect to the package limitation, but Kuehne + Nagel declined to stipulate to liability and advised that it had no objection to a bench trial on application of the package limitation. Judge Liman gave HDI Global leave to file a motion for summary judgment on liability and concluded that a bench trial on the package limitation would further convenience and promote efficiency. Accordingly, the court agreed to conduct a bench trial on application of the package limitation. HDI Global also moved for reconsideration of Judge Liman’s order finding a fact question with respect to the number of packages, arguing that the Second Circuit’s Seguros decision was dispositive with its holding that the number appearing under the heading “NO. OF PKGS” determines the limit of liability under COGSA. Judge Liman reiterated that the reasoning in Seguros applies unless the number is plainly contradicted by contrary evidence of the parties’ intent. In this case, the language that the packages were “into” 24 pallets reflected a contrary intent, and Judge Liman denied the motion for reconsideration. See December 2024 Update.
In advance of the bench trial with respect to the package limitation, Judge Liman considered the motions of the parties with respect to the evidence to be presented at trial. HDI Global sought to exclude evidence related to the intent of the parties on the meaning of the term “package.” Judge Liman reasoned that the court could commit reversible error in a bench trial by excluding evidence, but it was almost impossible to commit reversible error in a bench trial by admitting evidence. Therefore, he agreed to the admission of testimony on the meaning of “package.” Kuehne + Nagel sought to exclude bills of lading issued by other carriers and by Kuehne + Nagel in an unrelated case, noting that the bills had not been produced in response to requests for production. HDI Global responded that the bills were being offered for impeachment, and they would not prejudice Kuehne + Nagel. Judge Liman agreed with HDI Global and held that they would be allowed for impeachment. See February 2025 Update.
Judge Liman held a bench trial to determine whether the smaller “carton” in which the electrical wire harnesses were contained or the larger pallets that contained the cartons were the packages for COGSA. The parties stipulated that should Judge Liman determine that the cartons were the packages, the court should enter judgment in the amount of $119,967.00 (the limitation would be $240,000 for 480 cartons, but the damage was $119,967.99), and that if Judge Liman held that the pallets were the packages, the judgment should be $12,000 (for 24 pallets). Judge Liman began with the language of the sea waybills, which contained a specific provision stating that the word package “shall be any palletised and/or unitized assemblage of cartons which has been palletised and/or unitized for the convenience of the Merchant, regardless of whether said pallet or unit is disclosed on the front hereof.” Judge Liman noted that he had held the trial to determine if there was a conflict with the definition of package in the waybills as “the packages or other shipping units enumerated on the face of this sea waybill as packaged in such Container and entered in the box on the face hereof entitled ‘Total number of Containers or Packages received by the Carrier.’” The Number of Packages corresponded to the number of cartons. After trial, Judge Liman was able to construe these provisions harmoniously. The sea waybills contained a specific provision that is “narrowly cabined” where the cargo has been palletized for the “convenience of the Merchant.” In that circumstance, the pallets are the packages. If the carrier is given loose cartons or palletizes the cartons for its own benefit, then the number of cartons listed on the front of the sea waybills under the heading Number of Packages” would be the COGSA packages. Judge Liman declined to apply principles from cases involving treatment of containers, citing the Second Circuit in Monica Textile: “In non-container cases we have generally deferred to the parties’ intent as manifested by their bill of lading, in determining what is the relevant COGSA package.” Judge Liman explained: “The one consistent measurement common to all of the shipping documents between ECI and Mahle is the number of pallets.” He added: “Whether the pallets contain 20 cartons or 40 cartons, the carrier is indifferent—it is obligated to pick up a pallet, to load the pallet onto a container, to unload the pallet from the container, and to deliver the pallet. As directed by ECI and Mahle, the pallet is the unit of shipment for the carrier.” As the cargo was palletized for the convenience of the shipper, the sea waybills’ limitation of liability provision unambiguously limited the carrier’s liability to $500 per pallet, and Judge Liman entered judgment in the amount of $12,000.
Judge transferred ocean carrier’s suit for indemnity/contribution against inland rail carrier for loss of cargo during the inland carriage based on forum-selection clause in the inland carrier’s Intermodal Rules, holding that the use of the word “shall” was mandatory and the choice of two forums was not ambiguous; MSC Mediterranean Shipping Co. v. BNSF Railway Co., No. 4:24-cv-1129, 2025 U.S. Dist. LEXIS 29278 (N.D. Tex. Feb. 19, 2025) (Pittman).
This litigation involves two shipments of vacuum cleaners. MSC Mediterranean transported one shipment from Malaysia to Long Beach, California and the other from Malaysia to Oakland, California. BNSF was then responsible for transporting the first shipment from Long Beach to Chicago, Illinois, and it was responsible for transporting the second shipment from Oakland to Chicago. BNSF did not deliver the cargo to the consignee in Chicago, and MSC Mediterranean settled with the cargo owner for a total of $350,000. MSC Mediterranean then brought this suit against BNSF for indemnity/contribution in federal court in Texas, asserting that BNSF was responsible for the loss as the cargo had been pilfered during the custody of BNSF. Citing the forum-selection clause in its Intermodal Rules and Policies Guide (suit shall be brought in the federal district court in the location of the shipment’s origination or termination with BNSF), BNSF moved to transfer the case to the Northern District of Illinois (where the cargo was to be delivered). MSC Mediterranean first argued that transfer was not required because the clause was permissive and not mandatory (contending that “the word ‘shall’ does not necessarily indicate a clause is mandatory”). Judge Pittman disagreed, distinguishing the authority cited by MSC Mediterranean and holding that the use of the word “shall” in the BNSF Rules was mandatory. Judge Pittman also rejected the argument that the specification of two forums was ambiguous, citing the reasoning that a clause with multiple forums is often necessary in international transport contracts as “there is much uncertainty regarding the resolution of disputes.” Finally, MSC Mediterranean argued that the forum-selection clause was not applicable to the claim for indemnity/contribution as it only applied to “All loss or damage suits filed against BNSF.” Judge Pittman disagreed, answering that the language did not delineate between types of claims (contract or otherwise) and did not differentiate between claims brought by the cargo owner or the ocean carrier that had paid the cargo owner). Judge Pittman then weighed the public interest factors and agreed to transfer the case.
From the state courts
Trial court acted within its discretion in striking the defendant’s pleadings for violating the court’s sequestration order during trial by advising a witness about the plaintiff’s testimony; Mogensen v. SCF Lewis & Clark Fleeting LLC, No. 5-23-0501, 2025 IL App. (5th) 230501, 2025 Ill. App. LEXIS 194 (Ill. App. 5th Dist. Feb. 4, 2025) (Welch).
Kevin D. Mogensen, an employee of SCF Lewis & Clark Fleeting, was injured while loading corn product from a conveyor into a barge while working on the Mississippi River in Madison County, Illinois, claiming respiratory problems from inhalation of dust. He brought this suit under the Jones Act and general maritime law against SCF Lewis & Clark in the Circuit Court of Madison County, Illinois, and SCF Lewis & Clark asserted that Mogensen’s exclusive remedy was under the LHWCA (or the Illinois Workers’ Compensation Act). The case was tried to a jury, and the defendant invoked the rule for sequestration of witnesses. Mogensen testified about his exposure to dust with a yellow tinge that arose from a worker cleaning dust from the barge with a backpack blower. SCF Lewis & Clark presented testimony from a witness that the barge was loaded with corn gluten feed that is brown in color and not yellow. On cross-examination, the witness was advised that he had been advised by counsel of the prior testimony about the color of the product, and Mogensen moved to strike the defendant’s pleadings for violating the sequestration order. The Judge agreed, and the case was submitted to the jury on the sole issue of damages (the jury awarded a total of $3.31 million). SCF Lewis & Clark appealed the striking of its pleading, but the appellate court held that the trial court acted within its discretion as the defendant violated its own motion.
Appellate court conditionally granted a writ of mandamus to order the district court to enforce a forum-selection clause in an exclusive-dealer contract for sale of offshore fishing boats; In re Invincible Boat Co., No. 14-24-00565-CV, 2025 Tex. App. LEXIS 869 (Tex. App.—Houston [14th Dist.] Feb. 13, 2025) (Jewell).
Invincible Boat Co. manufactures high-end offshore fishing boats. It entered into an authorized dealer agreement in 2018 that designated VIP Boats as its exclusive dealer in Texas, and the agreement was renewed until 2023 when representatives of Invincible named Ron Hoover Companies as the exclusive dealer. VIP Boats brought suit against Invincible and Ron Hoover Companies in state court in Brazoria County, Texas, asserting claims for breach of contract, violations of (and conspiracy to violate) the Texas Occupations Code, and tortious interference with contract (and conspiracy to commit tortious interference with contract). The defendants moved to dismiss the suit based on the forum-selection clause selecting the state or federal courts located in Miami-Dade County, Florida as the exclusive forum for tort or contract claims related to the agreement. Judge Pulcher denied the motion, and the defendants filed a petition for a writ of mandamus in the Texas Court of Appeals for the Fourteenth District. Writing for the Court of Appeals, Justice Jewell stated that the motion to dismiss was the proper procedural mechanism to enforce the forum-selection clause and that a writ of mandamus is the proper remedy to review an order declining to enforce a forum-selection clause because appeal is an inadequate remedy. Turning to the application of the clause, Justice Jewell noted that the defendants argued that VIP Boats failed to establish that the contract was in existence because its term had expired when it was terminated and when Ron Hoover Companies was named. Justice Jewell recognized that there was a disagreement regarding the renewal and termination of the contract, but he reasoned that the disagreement did not render the agreement invalid. Thus, Invincible met its initial burden to establish an agreement to an exclusive forum. Construing the “related” language of the clause broadly, Justice Jewell held that the claims asserted by VIP Boats were encompassed within the clause. Finally, VIP Boats argued that the Texas Occupations Code contains a mandatory venue provision for the county of the dealer’s principal place of business as stated in the agreement. Citing a similar argument with respect to venue in Jones Act cases, Justice Jewell held that the venue provision applied to suits properly brought in Texas and did not apply when the parties agreed to a forum in another state. Consequently, the Court of Appeals conditionally granted the petition for a writ of mandamus and directed the district court to issue an order dismissing the case.
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 2801 SW 149th Ave Suite 120 Miramar, FL 33027 O 305.274.5507
Quotes:
In honor of Judge Bruce Selya, who recently passed away after sitting for more than 38 years on the United States Court of Appeals for the First Circuit (following 4 years on the United States District Court for the District of Rhode Island), the Update includes multiple quotes from Judge Selya:
This rebuttal is all foam and no beer.
United States v. Correia, 55 F.4th 12, 27 (1st Cir. 2022).
. . . the appellant’s asseverational array is all meringue and no pie . . . .
United States v. Ilarraza, 963 F.3d 1, 5 (1st Cir. 2020).
We find this to be a ketchup-bottle type of argument: it looks quite full, but it is remarkably difficult to get anything useful out of it.
Dartmouth Review v. Dartmouth College, 889 F.2d 13, 18 (1st Cir. 1989).
The Longshore/Maritime Update is for anyone interested in current longshore and maritime cases and news. Please invite others to join. They may do so by sending an email message to LongshoreUpdate+subscribe@groups.io. Content will be in the form of summaries of recent developments, court decisions, commentary, and (where possible) links to the decisions. Generally, updates will be limited to once a month. Anyone working in the longshore/maritime environment should find this useful. To unsubscribe at any time, just send an email message to LongshoreUpdate+unsubscribe@groups.io.
© Kenneth G. Engerrand, March 31, 2025; redistribution permitted with proper attribution.
