March 2025 Longshore/Maritime Update
March 2025 Longshore/Maritime Update (No. 310)
Notes from your Updater:
On January 10, 2025, Magistrate Judge McGivern of the United States District Court for the District of Puerto Rico entered his findings of fact and conclusions of law, denying recovery to both Air-Sea Systems and Grazel Foundation in a dispute over construction of a maritime platform at Magueyes Island in Lajas, Puerto Rico and with respect to allegations that Grazel made false and disparaging statements to the National Oceanic and Atmospheric Administration and to representatives at the University of Puerto Rico and the Puerto Rico Department of Natural Resources. See Air-Sea Systems, LLC v. Grazel Foundation, LLC, No. 21-cv-1581, 2025 U.S. Dist. LEXIS 5544 (D.P.R. Jan. 10, 2025).
On February 6, 2024, the Eleventh Circuit affirmed the decision of Judge Martinez of the United States District Court for the Southern District of Florida that the regulations enacted by the Florida Fish and Wildlife Commission with respect to pompano fishing in an area of federal waters in the United States Exclusive Economic Zone of the Gulf of America, off the Florida coast, were not preempted by federal law and did not violate the Fourteenth Amendment’s Equal Protection Clause. See Daniels v. Executive Director of the Florida Fish and Wildlife Conservation Commission, No. 23-13577, 2025 U.S. App. LEXIS 2753 (11th Cir. Feb. 6, 2025) (Tjoflat).
On February 7, 2025, the Fifth Circuit affirmed the decision of Judge Hoyt of the United States District Court for the Southern District of Texas that Great Lakes Dredge & Dock Co. had not shown an injury that gave it standing to challenge the letter ruling from the United States Custom & Border Protection agency, in connection with the construction of the Vineyard Project (wind farm off Martha’s Vineyard on the outer Continental Shelf) that a Jones-Act qualified vessel is not required for the first delivery of scour protection (layers of rock around a coast structure’s foundation to prevent erosion) to the “pristine” seabed because, at that stage, “there is no coastwise point.” The letter clarified the previous position that carrying scour protection rock from a point in the United States to the OCS is coastwise transportation that must be undertaken by a Jones Act-qualified vessel (although carrying of such rock from a foreign point, such as Canada, is not coastwise transportation that requires a Jones Act-qualified vessel). See Great Lakes Dredge & Dock Co. v. Magnus, No. 23-20516, 2025 U.S. App. LEXIS 2900 (5th Cir. Feb. 7, 2025) (Duncan).
On February 24, 2025, the United States Supreme Court declined to hear a nonmaritime case asking the Court to address the standards for vacating or enforcing arbitral awards. The questions presented were: 1. Whether, under a proper application of the Constitution, the Court can relinquish its Article III duties by merely deferring to arbitrators when enforcing arbitration awards; 2. Whether, under a proper application of the FAA, the Court should enforce arbitration awards that manifestly disregard the law or violate public policy; and 3. Whether the Court should clarify the extent of discretion that courts retain under Article III of the Constitution when reviewing arbitration awards. The Tenth Circuit had held that if the arbitrator committed an error, the error did not rise the level of “willful inattentiveness” necessary to vacate the award. Peterson v. Minerva Surgical, Inc., No. 24-3003, 2024 U.S. App. LEXIS 20602 (10th Cir. Aug. 15, 2024) (Federico), cert. denied, No. 24-712, 2025 U.S. LEXIS 569 (Feb. 24, 2025).
Many maritime contracts contain provisions for the “prevailing party” to recover attorney fees to protect or pursue rights under the contract (see, e.g., Glenn E. Daulton, Inc. v. Pontchartrain Partners, LLC in the December 2024 Update). On February 25, 2025, the United States Supreme Court addressed the meaning of the term “prevailing party” in a Section 1983 suit against the Commissioner of the Virginia Department of Motor Vehicles brought by drivers whose licenses were suspended for failing to pay court fines or costs. The district court granted a preliminary injunction against enforcement of the Virginia statute, but the statute was repealed before the case was scheduled for trial, and the case was dismissed as moot. The en banc Fourth Circuit ruled that the district court should award a fee because the plaintiffs prevailed with the preliminary injunction, but the Supreme Court reversed, holding that there must be an “enduring change” in the legal relationship between the parties and not merely a “transient victory at the threshold of an action.” Thus, a plaintiff prevails “when a court conclusively resolves a claim by granting enduring judicial relief on the merits that materially alters the legal relationship between the parties.” The Court noted: “A different body of caselaw addresses when a defendant is a ‘prevailing party’ for the purposes of other fee-shifting statutes. Our decision today should not be read to affect our previous holding that a defendant need not obtain a favorable judgment on the merits to prevail, nor to address the question we left open of whether a defendant must obtain a preclusive judgment in order to prevail.” See Lackey v. Stinnie, No. 23-621, 2025 U.S. LEXIS 866 (Feb. 25, 2025) (Roberts).
On the LHWCA Front . . .
From the federal district courts
Employee injured in moped accident during R&R in Thailand was not in the zone of special danger/course of employment for his DBA claim; Butcher v. Service Employees International Inc., No. 3:23-cv-110, 2025 U.S. Dist. LEXIS 2839 (M.D. Fla. Jan. 7, 2025) (Horovitz), adopted, 2025 U.S. Dist. LEXIS 18330 (M.D. Fla. Feb. 3, 2025) (Howard).
Archie Butcher was employed by Service Employees International Inc. (SEII) as a recovery mechanic at Camp Taji, Iraq (retrieving and repairing military equipment, loading the equipment on trailers, and returning it to the military compound). He worked 12 hours per day, seven days per week (and sometimes more). As an “In Theater” employee, Butcher was eligible for Rest and Relaxation Leave pursuant to his employment agreement. After 120 days of assignment, he was permitted to take Leave for 10 paid days on a use-it-or-lose-it basis. SEII provided transportation for the R&R between Bagdad International Airport and Dubai and overnight lodging in Dubai. Butcher was then free to travel to the destination of his choice anywhere in the world except combat zones. Butcher paid the remaining expenses, such as food, lodging, recreation, and transportation, except he was reimbursed up to $860 for airfare to and from Dubai. Butcher was not subject to recall during the Leave and was not required to stay in contact with his supervisor. Leave was his “‘personal time’ to relax.” Butcher took leave three times in Thailand. On his third leave he was apparently involved in a moped accident for which he presented a claim under the Defense Base Act for a skull fracture and traumatic brain injury (Butcher has no recollection of how the injury occurred). The case was tried to District Chief Administrative Law Judge Johnson, who concluded that Butcher’s injuries did not arise out of or in the course of his employment with SEII, and, therefore, were not subject to the DBA. He reasoned that Butcher was “so far from his employment and [was] so thoroughly disconnected from the service of his employer that it would be entirely unreasonable to say that injuries suffered by him arose out of and in the course of his employment.” Judge Johnson added: “To accept Claimant’s argument that the zone of special danger should apply to the circumstances of this case would be to expand it beyond recognition.” Butcher appealed to the Benefits Review Board, and the majority affirmed Judge Johnson’s decision, explaining: “Claimant’s injuries while on R&R in Thailand are far removed from his duty station and do not fall within a foreseeable risk associated with his combat theater employment in Iraq. His decision to undertake any particular personal frolic while on vacation in Thailand, including a potentially dangerous one, was his own choice and cannot be considered an ‘obligation’ or ‘condition’ of employment. It is too far removed from his employment to be included in a zone of special danger surrounding his employment in Iraq.” Administrative Appeals Judge Buzzard dissented, rejecting “a new physical proximity test, wherein an injury must occur within an undefined ‘vicinity” of the employee’s duty station.” Butcher sought reconsideration with a suggestion for en banc review, and the Board rejected the suggestion with dissents from Administrative Appeals Judges Buzzard and Rolfe. Butcher sought review in the United States District Court for the Middle District of Florida, and Magistrate Judge Horovitz recommended that the court affirm the BRB’s opinions upholding the decision of Judge Johnson. His ruling was driven by the deferential standard of review, stating: “One might presume that application of uncontroverted facts to the zone of special danger doctrine would be a question of law, subject to stricter review. But that is not so.” Magistrate Judge Johnson pointed out the Fifth Circuit’s explanation that in the leading case from the Supreme Court, O’Leary, the Court ““‘seemingly went out of its way’ to point out” that the determination that the death at issue arose out of an in the course of employment was treated as “a finding of ‘fact[.]’”” Applying the deferential standard of review, Magistrate Judge Horovitz held that “the ALJ’s determination clears the low evidentiary bar of being supported by substantial evidence.” Magistrate Judge Horovitz believed that a reasonable fact finder could have reached the opposite conclusion, that Butcher’s injuries arose from the zone of special danger, but he recommended affirmance as Judge Johnson’s decision was not irrational or lacking substantial evidence. On February 3, 2025, Judge Howard adopted the recommendation (without objection).
From the state courts
Marine insurer that paid maintenance and cure to an injured shipwright was entitled to subrogate against its insured when the shipwright was found not to be a seaman and instead was found to be subject to the state workers’ compensation statute (and the subrogation claim included statutory interest from the date of the demand for subrogation); Flagship Niagara League v. Acadia Insurance Co., No. 537 C.D. 2024, 2025 Pa. Commw. LEXIS 7 (Pa. Commw. Ct. Jan. 6, 2025) (Wojcik).
The long litigation in this matter originated when Robert Arlet slipped and fell on an icy sidewalk 14 years ago, injuring his left arm and shoulder while working as a shipwright with Flagship Niagara League. Flagship Niagara maintained a Commercial Hull Policy with Acadia Insurance Co. that provided coverage for Flagship Niagara’s vessel, the BRIG NIAGARA, as well as coverage for seamen’s claims under the Jones Act and general maritime law. Acadia Insurance began paying maintenance at the rate of $50 per day and medical expenses as cure. Arlet later filed a claim under the Pennsylvania workers’ compensation act, and Flagship Niagara joined the State Workers’ Insurance Fund, seeking coverage in the event Arlet was covered under the state act as opposed to being a seaman. Arlet filed a petition seeking benefits from the Uninsured Employers Guaranty Fund in the event Flagship Niagara did not have workers’ compensation insurance on the date of the injury. The Workers’ Compensation Judge bifurcated the proceedings and held that Arlet was a seaman and that the Jones Act was his exclusive remedy. Arlet appealed, and the Workers’ Compensation Appeal Board reversed, holding that Arlet was a land-based employee who was not covered under the Jones Act. The Appeal Board added that Arlet’s receipt of maintenance and cure did not preclude him from seeking benefits under the state statute. On remand, the Workers’ Compensation Judge found that Flagship Niagara was not insured and ordered Flagship Niagara to pay the difference between the benefits owed under the state act and the amount paid for maintenance and cure (with the Guaranty Fund paying in the event Flagship Niagara defaulted). The Judge also denied subrogation to Acadia Insurance because its investigation reflected that it had correctly paid maintenance and cure under its policy. After multiple appeals to the Workers’ Compensation Appeals Board, the Commonwealth Court of Pennsylvania, and the Pennsylvania Supreme Court, the Commonwealth Court agreed that there was an exception in this case to the general rule that an insurer is not permitted to subrogate against its own insured (as benefits were not owed under the policy because Arlet was not a seaman) and that statutory interest was owed from the date that Acadia Insurance gave notice to Flagship Niagara that it was seeking subrogation).
California Supreme Court held that maintenance worker for yacht club who was injured while stepping from a dock to a boat (and who was excluded from coverage under the LHWCA by the 1984 Amendments), was not barred from bringing a negligence claim against his employer under the general maritime law by the exclusive remedy provision of the California Workers’ Compensation Act; Ranger v. Alamitos Bay Yacht Club, No. S282264, 2025 Cal. LEXIS 1033 (Cal. Feb. 27, 2025) (Evans).
Brian Ranger was employed by Alamitos Bay Yacht Club in Long Beach as a maintenance worker. He assisted in the painting, cleaning, maintaining, repairing, unloading, and mooring of vessels at the club. He was injured after loading a club boat into the water when he fell after stepping from the dock to the bow of the boat. He applied for workers’ compensation under the California statute and brought this suit in the Superior Court of Los Angeles County, seeking to recover for negligence and unseaworthiness under the general maritime law. Judge Kim sustained the club’s demurrer, ruling that there was no admiralty jurisdiction and that the state compensation statute provided the exclusive remedy for Ranger. Ranger appealed to the California Court of Appeals, and, writing for the court, Judge Wiley provided an extensive explanation of the 1984 Amendments to the LHWCA, which exclude “individuals employed by a club, camp, recreational operation, restaurant, museum, or retail outlet” if the individuals are subject to coverage under a state workers’ compensation law. As the exclusion ultimately applied to all clubs, whether for profit or nonprofit, Judge Wiley held that Ranger was not covered under the LHWCA, noting that Congress had determined that club employees “are more aptly covered under appropriate state compensation laws” because they lack “a sufficient nexus to maritime navigation and commerce.” Judge Wiley reasoned that employees may not sue their employer in tort under the California statute, and that result made sense in this case because federal law and state law were in accord—both the state and federal legislature have replaced the fault-based tort system with the no-fault alternative of workers’ compensation. Ranger cited the Fifth Circuit’s decision in Green v. Vermillion Corp., permitting a worker at a duck hunting camp, who was excluded from the LHWCA by the 1984 Amendments, to bring maritime claims for negligence and unseaworthiness, but Judge Wiley “profoundly” disagreed with the Fifth Circuit and joined with the contrary result from the Eleventh Circuit in Brockington v. Certified Electric, reasoning that the uniformity cited by Ranger and the Fifth Circuit as justification for preemption of state law was “a one-way street, not a useful method of analysis: it always insists on national uniformity, regardless of context, and it always disfavors state power, which can be sound and richly diverse.” Judge Wiley preferred the uniformity in modern Supreme Court decisions like Batterton, where the “uniformity sought is with policies enacted by democratically elected representatives.” He added that “Green’s and Ranger’s conception of ‘uniformity’ has antique support, but age has rotted some of those old timbers.” Judge Wiley concluded that the California workers’ compensation law was the exclusive remedy, stating: “A core part of the state workers’ compensation bargain is that injured workers get speedy and predictable relief irrespective of fault. In return, workers are barred from suing their employers in tort.” See October 2023 Update.
The California Supreme Court granted Ranger’s petition for review and reversed the decision of the court of appeal. The court of appeal did not consider whether Ranger’s accident fell within the admiralty jurisdiction, and, writing for the California Supreme Court, Justice Evans assumed for this proceeding that the injury satisfied the location and connection tests. Justice Evans began by discussing what federal law applies to Ranger’s accident. As the 1984 Amendments to the LHWCA exclude club workers like Ranger from its coverage, the court of appeal held that club workers are subject to the state workers’ compensation statute and its exclusive remedy provision. Ranger argued that the effect of the LHWCA only affected the workers’ compensation remedy and did not deprive him of his right to a tort remedy under the general maritime law. Justice Evans agreed, stating: “The LHWCA by its terms does not narrow admiralty jurisdiction for noncovered employees nor does it purport to articulate what general maritime remedies are or are not available to club workers.” (Citing Perini). Justice Evans disagreed with the court of appeal’s reference to Batterton for the proposition that admiralty courts should look to legislative enactments for policy guidance, reasoning: “The Club does not explain why workers who are excluded from the LHWCA–and who did not receive the benefit of the bargain Congress struck with covered workers—must nonetheless suffer the limitations that are a part of that federal scheme.” Justice Evans then considered whether the California statute itself displaced general maritime remedies and constituted Ranger’s exclusive remedy. She concluded that the exclusive remedy provision in the state statute would conflict with the established maritime claim for negligence, siding with cases such as Green v. Vermillion that held that state exclusive remedy provisions do not preclude a worker’s general maritime claims. Accordingly, Justice Evans concluded “that neither the 1984 Amendments to the LHWCA nor the exclusive-remedy provision of the California Workers’ Compensation Act bars a plaintiff under admiralty jurisdiction from seeking further relief for an injury under general maritime law.” [The court remanded the case to decide whether there was admiralty jurisdiction, whether Ranger was entitled to assert an unseaworthiness claim, and whether Ranger, as a repair worker, had the ability to assert a negligence claim against his vessel-owning employer because of the LHWCA]. Thanks to Michael F. Sturley, Fannie Coplin Regents Chair at the University of Texas School of Law, for bringing this decision to our attention
And on the maritime front . . .
From the federal appellate courts
Fifth Circuit affirmed the denial of a seaman’s revised negligence claim after his initial version was contradicted by video footage (as the revised version was inconsistent with the evidence) and the denial of the seaman’s maintenance and cure claim based on the judge’s determination that the seaman was not injured before or during the collision; In re Ingram Barge Co., No. 24-30410, 2025 U.S. App. LEXIS 703 (5th Cir. Jan. 13, 2025) (per curiam).
This litigation arises from the collision in the Lower Mississippi River between the M/V CAROL MCMANUS, owned and operated by Ingram Barge Co., and the M/V BIG D, owned by FMT Industries and operated by Florida Marine. Limitation actions were filed in federal court in Louisiana on behalf of both vessels, and injury claims were asserted by Dustin Harris, a deckhand on the BIG D (who was employed by PBC Management), and Robert Flynt, a cook on the CAROL MCMANUS. Flynt claimed that he was knocked from his bunk by the collision, and Harris claimed that he was in the deck locker of the BIG D when the collision occurred, and he hit his head on a pipe and fell down a set of stairs. Ingram moved for summary judgment on Flynt’s claim for maintenance and cure, asserting a McCorpen willful concealment defense. Ingram, Florida Marine, and PBC Management moved for summary judgment that Harris’ claims were fabricated and should be dismissed as baseless. Harris moved to exclude the testimony of the petitioners’ maritime safety expert, Captain Ronald Campana, as well as the testimony of orthopedic surgeon Dr. Neil Duplantier. Judge Africk first considered the motions to exclude the expert opinions. With respect to Capt. Campana, Harris argued that the report offered a “director’s commentary” of video footage from the BIG D, that the petitioners used to refute Harris’ injury claim. Judge Africk declined to exclude the expert’s discussion, however, because Capt. Campana was required to explain the basis for his opinion, and that explanation included the information from the video footage. Harris also objected that Capt. Campana is not an expert in accident reconstruction or biomechanics, but his opinion discussed whether the movement of the vessel would cause someone to stumble or lose his balance. Judge Africk reasoned that Capt. Campana’s extensive experience sailing vessels and investigating vessel accidents was sufficient that he could testify about acceleration and deceleration of the vessel and how that affected the workers on the vessel and whether the movement would cause a fall. Harris could object to testimony about the physics of his fall, whether a fall actually occurred, and whether Harris’ version was corroborated by the video. Harris sought to exclude the testimony of Dr. Duplantier, an orthopedist, with respect to Harris’ claimed head injury, because he is not a neurologist. The petitioners responded that Dr. Duplantier’s evaluation was primarily for lower back pain, but he did review the CT scan and MRI of Harris’ head and should be allowed to make observations with respect to his treatment of Harris as a whole. Noting that a physician’s medical training will generally be sufficient to allow him to testify in fields outside his specialty and considering that the case will be tried to the court and not to a jury, Judge Africk declined to exclude the opinions of Dr. Duplantier with respect to Harris’ head injury. Judge Africk then considered the McCorpen willful concealment defense to Flynt’s maintenance and cure claim. Ingram argued that Flynt had answered “no” to pre-employment questions whether he had been treated for back pain or back injuries but that there were multiple medical records and a statement from Flynt with respect to back problems. Flynt had reported backaches since 2014, had sought treatment for back spasms in 2019 and 2020, and a lumbar spine X-Ray in 2021 demonstrated severe L5-S1 degenerative disc disease with grade 1/2 anterolisthesis of L5 on S1. Flynt denied that he was aware of the results of the X-Ray as it was part of a pre-employment physical exam and was not from treatment for back pain, and he explained that the other records were not based on a physical examination of his back as the only reference to an actual examination of his back stated that his back was normal with a full and painless range of motion. Judge Africk did not accept Flynt’s version, concluding that Flynt had intentionally concealed medical information because he had been treated for back pain. Ingram also established that it would have required additional medical information because Flynt’s history of back pain was material to his ability to safely perform his job duties, and it was clear to Judge Africk that the failure to disclose was material. As Flynt failed to disclose that he sought treatment for lower back pain and now complained of an injury to his lower back, Judge Africk granted summary judgment on the McCorpen defense to Flynt’s maintenance and cure claim. Both petitioners sought summary judgment on the negligence claims of Harris, citing “irrefutable video evidence” from the BIG D that Harris was in the galley at the time of the collision, not in the deck locker where he claims to have hit his head before falling down a set of stairs. Harris responded that he was mistaken about the accident happening during the collision and that it actually happened during the evasive maneuver before the collision. Judge Africk was mindful of his discretion to strike the affidavit that was inconsistent with Harris’ earlier version of the accident, so he examined the details of the second version. Harris argued that his accident occurred in the 20 seconds between when the vessel was put in reverse and the time at which he could be seen returning to the galley. He stated that he heard a creaking sound just before his accident, which was recorded as occurring eight seconds before his entry into the galley. Judge Africk explained that during those eight seconds, Harris would have had to lose his balance, strike his head, fall down a flight of stairs, get up, walk back up the stairs, and walk approximately 15 feet to the galley. Although Harris stated that he quickly ran up the stairs and into the galley in the new version, that did not reconcile with the prior version that he could only make his way up the stairs by “leaning on the wall.” And Ingram presented evidence that the reversal of the boat did not cause it to rock or tip along with the video from the galley that objects did not move and a deckhand was not jostled. Finally, Judge Africk noted that Harris entered the galley with no visible signs of an injury even though he had just hit his head and fallen down the stairs. Accordingly, Judge Africk granted summary judgment on Harris’ negligence claims (he also granted summary judgment on the claim of unseaworthiness because the accident was caused by an isolated act of negligence).
Judge Africk then considered PBC Management’s motion for summary judgment that Harris was not entitled to maintenance and cure because he could not prove that his injury occurred in the service of the vessel. Harris responded that the video footage from the vessel showed that he was walking with a limp when he disembarked from the BIG D and that his claim was supported by medical records reflecting treatment after he disembarked. Judge Africk cited his prior analysis in which he concluded that Harris had not provided evidence that his injuries occurred during or right before the collision as Harris alleged and that his allegations were “plainly contradicted by the video evidence, his previous testimony, the vessel captain’s statements, and the petitioner’s expert report.” Accordingly, Judge Africk held that Harris did not present a material fact and that summary judgment was appropriate on the maintenance and cure claim. See July 2024 Update.
Harris appealed the denial of his negligence and maintenance and cure claims, and the Fifth Circuit described the effect of the video evidence: “When a nonmovant’s version of events is ‘so utterly discredited’ by video evidence in the record, such ‘that no reasonable jury could have believed him,’ we are not to ‘rel[y] on such visible fiction’ but must instead ‘view the facts in the light depicted by the videotape.’” After reviewing the video, the appellate court was “satisfied that the footage discredits both of Harris’s versions of his alleged accident.” The court agreed with Judge Africk’s determination that Harris did not suffer any injury while in service of the BIG D, concluding that the video “showed Harris present in the galley—not in the deck locker. Thus, the video evidence completely undermines his first version. It also makes completely implausible his second version advanced in his affidavit.” The appellate court agreed with Judge Africk that Harris could not succeed on his negligence claim against either vessel and that he was not entitled to maintenance and cure.
From the federal district courts
Seaman’s employer established McCorpen defense to maintenance and cure claim for PTSD based on denial of denial of depression, anxiety, or other psychiatric disease; Provost v. Cheramie Marine, LLC, No. 24-cv-1735, 2025 U.S. Dist. LEXIS 745 (E.D. La. Jan. 2, 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.”
Alliding vessel owed a duty to a worker who was at home at the time of the allision but came to the scene to perform work that was allegedly necessitated by the allision; Crescent Towing & Salvage Co. v. M/V JALMA TOPIC, Nos. 21-cv-1331, 21-cv-1390, 21-cv-1953, 24-cv-501, 2025 U.S. Dist. LEXIS 744 (E.D. La. Jan. 3, 2025) (Morgan).
The M/V JALMA TOPIC was traveling up the Mississippi River when its rudder stuck to port and the vessel allided with a barge and dock structure owned by Crescent Towing along with vessels owned by Cooper/T. Smith. The owner of the JALMA TOPIC filed a limitation action in federal court in New Orleans, and the owner notified everyone known to have a claim and provided notice to others in the New Orleans Times Picayune. Several claims were filed, and Judge Morgan entered a default against those who had not filed claims after the deadline passed for the filing of claims. Within two weeks of the default order, Gawain Schouest, port captain for Cooper/T. Smith, sought leave to file a claim for injuries he sustained while helping to secure the barge facility. Considering whether Schouest had shown cause under Rule F(4), Judge Morgan noted that discovery was ongoing and the parties would not be prejudiced by the late claim; that Schouest did not have actual notice of the proceeding until after the default; that Schouest was not a party who received written notice of the limitation action, did not subscribe to or read the Times Picayune on its website; and that his home had been damaged by Hurricane Ida, which disrupted his electricity, internet service, and cellphone service. Judge Morgan found that the equities weighed in favor of allowing Schouest to file a late claim. See January 2022 Update.
The owner and manager of the JALMA TOPIC filed a third-party complaint and Rule 14(c) tender against YDK Technologies, the manufacturer of the vessel’s autopilot system that was allegedly defective (claims for a defective condition, defective design, and failure to warn). YDK filed a motion to dismiss for lack of personal jurisdiction, and Judge Morgan granted the motion. YDK designed and manufactured the autopilot in Japan, and its stream of commerce ended outside the United States more than 15 years ago. There was no general jurisdiction against YDK, and there was no specific jurisdiction for the products liability claims under a stream of commerce theory. This left only a theory of specific jurisdiction with respect to the failure to warn claim. Judge Morgan noted the narrow body of law that the assertion of failure to warn does not, in and of itself, establish that the court has specific jurisdiction over a nonresident defendant, and she agreed that the allegation was insufficient to establish minimum contacts. Therefore, she considered the defendant’s contacts with the Louisiana forum. The vessel owner cited the fact that the JALMA TOPIC called at the Port of New Orleans in 2016 and had annual service on the autopilot by RadioHolland USA, which is part of the manufacturer’s network of service providers. And service calls were made on the autopilot systems on other vessels by members of the network of service providers. However, the vessel owner did not allege that YDK was involved in the service or that the owner called YDK to arrange the service. Thus, the question was whether RadioHolland, in servicing a vessel in New Orleans based on a direct request to it, was acting as YDK’s implied agent such that its contacts could be imputed to YDK to establish specific jurisdiction over YDK. Judge Morgan answered: “To hold RadioHolland to be YDK’s implied agent, even in the absence of an allegation that YDK arranged the service call . . . would be to stretch the boundaries of personal jurisdiction too far.” See February 2023 Update.
On September 8, 2023, all claimants in the limitation action settled their claims with the owner and manager of the JALMA TOPIC, except for Gawain Schouest, who was employed by Crescent Towing as a port captain. Schouest moved the court to dissolve the stay as he was the single claimant, and Judge Morgan lifted the stay based on the stipulations filed by Schouest. Schouest then brought suit in Louisiana state court against Crescent Towing, Cooper/T. Smith, and the owner/manager of the JALMA TOPIC. Crescent Towing and Cooper/T. Smith sought leave to lift the stay to bring claims for contribution and indemnity in the federal limitation action, and they declined to agree to be bound by the stipulations filed by Schouest. Schouest argued that the federal action should not be reopened because the quantum of damages for the claims of Schouest, Crescent Towing, and Cooper/T. Smith did not exceed the value of the limitation fund. Judge Morgan noted that the unilateral stipulation, without the agreement of Crescent Towing and Cooper/T. Smith was insufficient to protect the owner/operator, and she reinstated the stay to protect the limitation petitioners’ “absolute” right to limit their liability. See July 2024 Update.
The owner of the JALMA TOPIC filed a motion for summary judgment, seeking dismissal of Schouest’s general maritime negligence claim. The owner noted that Schouest was at home at the time of the allision and was only called to the scene after the allision occurred. The parties disputed whether the barge was stable at the time Schouest arrived at the scene and the extent of the work that he performed, but Schouest testified that there was nothing to hold the barge in place on the bank and something had to be done (there were disputes about the work that Schouest performed and when Schouest told Crescent Towing that his back was hurting). The owner of the JALMA TOPIC argued that it owed no duty to Schouest because he was not present at the time of the allision and the barge had been pushed into the mud and was stuck. However, Judge Morgan disagreed, finding that there was an issue to be resolved whether Schouest was performing work that the allision necessitated. She explained: “This is not a case in which Claimant was present because of the Allision but just so happened to suffer an injury.” As there was an issue whether the barge was stable when Schouest arrived, Judge Morgan declined to grant summary judgment to the owner of the JALMA TOPIC.
Federal judge hearing breach of contract suit by ocean carrier against cargo for failing to designate the shipment as dangerous declined to stay the case pending resolution of a claim against cargo in the FMC; Sealink International, Inc. v. Triple L Global, LLC, No. 3:24-cv-1907, 2025 U.S. Dist. LEXIS 810 (N.D. Tex. Jan. 3, 2025) (Starr).
According to Sealink International, Triple L booked a shipment with Sealink for the transportation of “Aluminum Alloys” from various locations to Port Klang in Singapore. CMA CGM was contracted as the carrier, but CMA CGM impounded the cargo when it discovered the contents were batteries that had been exposed to water and were potentially combustible, and Sealink was blacklisted by CMA CGM. Sealink brought this suit against Triple L in federal court in Texas, alleging jurisdiction based on diversity and stating that it was an action for breach of contract arising from a vessel shipment that is an admiralty claim pursuant to Rule 9(h). The breaches of contract were the false representations about the goods (failing to disclose them as dangerous) and failing to indemnify Sealink from the damages it suffered. Triple then filed a complaint with the Federal Maritime Commission, alleging violations of the Shipping Act of 1984 and regulations of the FMC, and it sought a stay of the Texas litigation pending resolution of the complaint with the FMC, invoking the primary jurisdiction of the FMC over matters arising from violations of the Shipping Act. Judge Starr declined to stay the Texas litigation, reasoning that the issues in the two cases are different—different causes of action arising under different sources of law. Although Triple L argued that the issues overlapped, Judge Starr answered that Triple L had not made that clear enough for the court to yield to the Commission.
Passenger failed to establish notice on her direct liability claim against the cruise line when she was struck by a plastic container lid that blew from a stack in high winds, and she failed to establish causal connection to her shoulder surgery for her vicarious liability claim; Cole v. Carnival Corp., No. 23-cv-60532, 2025 U.S. Dist. LEXIS 2851 (S.D. Fla. Jan. 3, 2025) (Damian).
Eureka Cole, a passenger on the CARNIVAL CONQUEST, was injured when strong winds lifted two or three plastic container lids and struck her on the shoulder while she was seated on the outer Lido Deck of the vessel. Her husband saw a crewmember stacking and unstacking plastic containers in a cart or workstation directly behind where Cole was seated. He witnessed the wind pick up the lids that struck Cole. Cole brought this action against the cruise line in federal court in Florida, alleging a count for direct negligence of the cruise line and a count for vicarious liability. The cruise line moved for summary judgment on both counts. With respect to the direct liability claim, the cruise line argued that it lacked actual or constructive notice of the dangerous condition. Cole presented the testimony of a crewmember who testified that the crewmembers were trained to secure items in the event of high winds, and Judge Damian held that this evidence of corrective measures was sufficient (combined with testimony of the windy conditions) to present a triable issue of notice. As Cole testified that it was very windy during the two or three hours that she was out on the Lido Deck and that she had to walk forward so as not to fall, Judge Damian considered the dangerous condition to have existed long enough to invite corrective measures (Judge Damian did not find the prior incidents presented by Cole to be sufficiently similar to provide constructive notice of the danger to the cruise line, and she also rejected the argument that the passenger did not have to establish notice because the cruise line created the dangerous condition). Turning to the claim for vicarious liability, the cruise line argued that there was no evidence that a crewmember violated any cruise line procedure or industry standard. However, Judge Damian cited the testimony of the crewmember with respect to the procedure to secure items on the ship in the event of windy conditions and held that there was a fact question whether the crewmember was negligent. See July 2024 Update.
A bench trial was completed on May 31, 2024. Although there was a dispute about how windy it was on the Lido Deck at the time of the incident, Judge Damian found that a dangerous condition was present from the combination of high winds and the stacked plastic container lids without any restraints. However, she found that neither the cruise line nor its crew members were aware that stacking the plastic container lids created a dangerous condition, even in high winds. Judge Damian accepted that the crew members were trained to secure items on the Lido Deck in the event of high winds; however, the evidence did not establish that the policies and procedures applied to the storage containers and lids. As to constructive notice, there was no evidence of substantially similar incidents, and Judge Damian did not believe that notice was established from observations of Cole’s husband that an employee was standing there when lids were picked up by the wind and struck Cole, as the testimony did not establish that the lids had been flying around for a sufficient time to invite corrective measures. And Judge Damian applied similar analysis to the cruise line’s argument that the condition was open and obvious, concluding that “not only was Carnival not on notice of the dangerous condition, but there is also a lack of evidence that the dangerous condition was open and obvious to Ms. Cole.” Therefore, Judge Damian found no direct liability of the cruise line. The conclusion that a crew member created the dangerous condition by stacking the container lids in windy conditions without securing them, caused Judge Damian to conclude that the breach was the basis for a finding of negligence of the cruise line on the vicarious liability count. Judge Damian then addressed the medical evidence and determined that Cole failed to prove by a preponderance of the evidence that the negligence caused her specific injury—a left rotator cuff tear that necessitated shoulder surgery, finding that the testimony of her treating physician, orthopedic surgeon John Wilkerson, “was not consistent with the greater weight of the evidence presented at trial, including the medical records from Ms. Cole’s visit with the ship’s medical center and with Florida Westside Hospital” (Judge Damian emphasized that she did not find Dr. Wilkerson’s testimony was not credible, noting that his “treatment was given pursuant to a letter of protection, which may provide some financial incentive to link the incident with the injury,” and explaining that Dr. Wilkerson “failed to address the evidence presented in the case pointing to a finding that Ms. Cole’s injury was not the result of the incident on the ship”). Accordingly, Judge Damian entered judgment in favor of the cruise line.
Safety expert’s testimony was not excluded in tripping case as the situation was more complex than other tripping cases where the expert’s testimony was excluded; Lopez v. Harvey Gulf International Marine, LLC, No. 23-cv-6348, 2025 U.S. Dist. LEXIS 1469 (E.D. La. Jan. 6, 2025) (Fallon).
Elvis Lopez claims that he was injured while offloading cargo from the M/V HARVEY INTERNATIONAL, owned by Harvey Gulf, when he tripped on grating on the vessel’s stairs that was not braced and secured. Lopez brought this suit in federal court in Louisiana under the Jones Act and general maritime law, and Harvey Gulf moved for summary judgment on Lopez’s maintenance and cure claim based on a McCorpen willful concealment defense. Lopez claimed injuries to his right knee, neck, and back, and Harvey Gulf cited the failure of Lopez to disclose injuries to his neck, back, and knee when he completed a medical questionnaire during his hiring process. Lopez answered that he misunderstood the questionnaire’s inquiry about injuries “in the past,” believing that he was only being asked about current conditions. He also argued that Harvey Gulf would have hired him even if it had known about his medical conditions because he had a good employment record with Harvey Gulf after he was hired. Judge Fallon evaluated each of the three McCorpen factors, and he found that the language of the questionnaire was clear and obviously designed to elicit information about prior knee, back, and neck injuries. As Lopez answered “no” to all of the questions “despite having an extensive history of neck, back and knee injuries spanning over twenty years and resulting from at least two prior work accidents,” Judge Fallon held that Lopez had intentionally concealed his medical history. As to the materiality factor, Judge Fallon reasoned that knee, neck, and back injuries were rationally related to the ability of the seaman to do his job as described by the affidavit from the Executive Vice President of Harvey Gulf that the injuries would have mattered in their hiring decision. Judge Fallon rejected Lopez’s argument that the materiality factor was not satisfied because he performed well in his job, answering that “post-hire performance is simply not relevant to whether Harvey Gulf would have made the same hiring decision.” As the undisclosed injuries were to the same areas of the body as were alleged in the suit, Judge Fallon held that the causal connection element was satisfied. Therefore, he granted summary judgment to Harvey Marine on Lopez’s maintenance and cure claim, and he held that Harvey Marine could offset the payments it had made for maintenance and cure against any recovery of damages Lopez might receive on his other claims. See August 2024 Update.
Lopez engaged Robert Borison as his safety expert, and Borison opined that the installation of the fiberglass stair grating on which Lopez tripped did not meet the safety standards of the American Society for Testing and Materials because the edges, where two panels of grating met, were not properly supported or fastened together. He also stated that Harvey Marine failed to properly inspect the grating after its installation, advising that Harvey Gulf was on notice that the grating was unstable and a tripping hazard because the testimony indicated that the grating moved or deflected when someone walked on it. Harvey Marine argued that Borison’s explanation of the safety standards was not helpful to the jury, which could compare the grating and the safety standard and determine if it was a tripping hazard. Harvey Marine also cited cases in which courts excluded Borison’s testimony as unhelpful to the jury. Judge Fallon disagreed with Harvey Marine, believing that Borison’s analysis of the application of the ASTM standards to the facts in this case is beyond the knowledge of an average juror. Judge Fallon distinguished cases in which Borison’s testimony has been excluded, reasoning that “although this is a tripping case, the Court finds that it is more complex than other tripping cases where Borison’s testimony was excluded.” Judge Fallon was “not persuaded that the jury can use their ‘common sense’ to determine whether the fiberglass grating was properly installed, with the correct use of grid overlap and fasteners.”
TVA Act, not the SAA, provided the applicable waiver of sovereign immunity for suit involving injuries and deaths; injury plaintiffs would have to explain how state law remedies (including punitive damages) could supplement maritime remedies, but wrongful death plaintiffs could proceed with a state remedy for punitive damages, subject to the maritime standard for punitive damages; Paulk v. Tennessee Valley Authority, Nos. 5:22-cv-15, 5:22-cv-105, 5:22-cv-114, 2025 U.S. Dist. LEXIS 1873 (N.D. Ala. Jan. 6, 2025) (Maze).
The Tennessee Valley Authority is a corporate instrumentality of the United States that is statutorily charged with the development and regulation of the Tennessee River system, including the Guntersville Reservoir (a large impoundment on the Tennessee River in northeast Alabama). The TVA acquired real estate outside the original river channel property and then deeded some of the property to Jackson County, Alabama by an Indenture. The Indenture gave Jackson County the right to construct and maintain piers, docks, and other facilities on the property and in the abutting water. The Indenture reserved to the United States the right to enter the area to carry out any functions, activities, or programs provided for in the TVA Act and provided that the TVA was liable for injuries or property damaged caused by the sole negligence of the TVA. As part of Jackson County Park and Marina, Jackson County designed, built, owned, operated, and maintained Dock B, a wood-framed covered dock with a metal roof and 2 uncovered and 36 covered slips. The DIXIE DELIGHT, a 43-foot liveaboard houseboat owned by Tim Parker, was berthed in slip 36 of Dock B—the slip closest to the shore. A fire broke out on the vessel, and the fire spread to neighboring vessels and to Dock B. As the fire spread to the dock, it prevented occupants of vessels located farther from shore from using the dock to make it to shore, resulting in injuries and deaths. The fire originated in the inner walls within the hull of the DIXIE DELIGHT between the electrical panel and its storage closet. Each of the slips on Dock B had a breaker box and a meter box to deliver and meter electricity. Jackson County had performed maintenance work on the slip 36 breaker box less than two weeks before the fire. Suits were filed in federal court in Alabama against the TVA, seeking to recover for the injuries, deaths, and property losses, and suits were also filed against Jackson County and others in Alabama state court. The TVA moved to dismiss the federal suits for several reasons. The TVA argued that the plaintiffs could not hold it liable as owner of the dock or submerged land, but Judge Maze did not have to address the issue of whether the TVA owned the dock because the plaintiffs alleged that the TVA owned, managed, and/or controlled the dock. Noting that the contractual agreements gave the TVA rights of inspection, that the TVA performed inspections, and that the plaintiffs alleged that the TVA voluntarily assumed a duty to warn of hazards based on findings from its inspections, Judge Maze concluded that the plaintiffs had alleged enough facts to support a finding of control of the dock by the TVA to survive a motion to dismiss. The TVA next argued that the Indenture with Jackson County provided that the TVA would not be liable for injuries, deaths, or property damage unless caused by the sole negligence of the TVA. As the plaintiffs brought suits alleging the negligence of both the TVA and the County and the negligence of the TVA was based on the deficiencies in the construction and operation of the dock by the County, the TVA argued that the incident could not have resulted from the sole negligence of the TVA and the claims against the TVA had been released. Judge Maze responded that the Indenture was an indemnification agreement from the County and not a release of third parties. Additionally, Judge Maze reasoned that it would be redundant for the County to indemnify the TVA from liability to third parties if the third parties had released the TVA from that liability. Judge Maze also rejected the argument that the plaintiffs’ entry onto Dock B was under the County’s title, so the plaintiffs could have no rights against the TVA that are greater than the rights of the County. He could not conclude that the language extended beyond the County and, at most, provided that the County would indemnify the TVA for the injuries/damages. Additionally, Judge Maze reasoned that, even if the language did operate as a release, the sole negligence exception precluded granting a motion to dismiss. Judge Maze noted that the plaintiffs asserted that the TVA undertook the duty to inspect and warn, which could make it liable for its own conduct and not only vicarious liability for the failings of the County. Finally, Judge Maze rejected arguments that the TVA was not liable under the Good Samaritan Doctrine or because the County had superior knowledge, as those issues were better resolved after discovery. See September 2023 Update.
As noted, the plaintiffs filed suits in federal court against the TVA as well as suits in Alabama state court that included as defendants the City of Scottsboro and the Electric Power Board of the City of Scottsboro. In the federal proceedings, the TVA filed a third-party complaint against Scottsboro, Jackson County, the Electric Power Board, and Parker. The TVA eventually dismissed its claims against Parker; however, Scottsboro and the Electric Power Board filed fourth-party complaints against Parker, seeking contribution for his share of the liability. Parker moved to dismiss the contribution claims, arguing that they should have been brought against him in the state actions as a compulsory counterclaim and, alternatively, that contribution is not a standalone claim under the general maritime law. Judge Maze rejected both arguments. He noted that the TVA was not a party to the state action, and Scottsboro and the Electric Power Board only requested contribution from Parker if the court found them liable on the TVA’s third-party complaint. Thus, Scottsboro and the Electric Power Board could not have been called upon to assert contribution in the state court for a claim that only arose later in the federal proceeding. Judge Maze also held that contribution is a standalone claim in maritime cases, arising when a tortfeasor pays more than his share of a judgment. He noted that under Rule 14(c) a defendant may implead a third-party defendant either for contribution or indemnity or to tender the third-party defendant to the plaintiff. Thus, Scottsboro and the Electric Power Board were free to use the impleader rule to bring a contribution claim, and they did not need to bring a separate tort claim. There was also no issue with the statute of limitations for the contribution claim. See November 2024 Update.
The TVA then moved to dismiss the plaintiffs’ state-law claims and to dismiss their request for punitive damages. The plaintiffs brought five claims against the TVA, three under general maritime law and two under state law, and the plaintiffs designated Rule 9(h) for the maritime claims. They based their state claims on federal question jurisdiction and supplemental jurisdiction. Judge Maze agreed that the court had admiralty jurisdiction because the locality and connection tests were satisfied with the fire starting on a vessel on navigable waters, reasoning: “Docking a vessel at a marina on a navigable waterway is a common, if not indispensable, maritime activity.” Agreeing that the court had supplemental jurisdiction over the state claims, Judge Maze then considered whether the TVA had sovereign immunity on the supplemental claims. Judge Maze noted that the Eleventh Circuit has held that the Suits in Admiralty Act does not waive sovereign immunity for punitive damages; however, the TVA Act specifically allowed suit for the same remedies faced by a private business. As the TVA Act waiver was more specific, Judge Maze applied the TVA Act waiver. Finding that the application of state law to supplement the plaintiffs’ maritime remedies would not violate the constitution or frustrate the provisions of the SAA, Judge Maze declined to dismiss the plaintiffs’ claims on the basis of sovereign immunity (rejecting the TVA’s argument that the SAA provides the exclusive immunity waiver in admiralty cases). Turning to the merits of the claims, Judge Maze noted that the plaintiffs brought similar claims under maritime law and Alabama law. Beginning with the injury claims, Judge Maze explained that maritime law applied unless there was a gap in the maritime remedies that could be filled with state law. As the injury plaintiffs did not identify any gap in maritime remedies, Judge Maze dismissed the state claims but allowed the plaintiffs to file an amended complaint setting forth the basis for state remedies to supplement maritime remedies. His analysis was slightly different with respect to the wrongful death plaintiffs in light of the Yamaha decision of the Supreme Court and the Amtrak decision of the Eleventh Circuit. Judge Maze held that the wrongful death plaintiffs could seek punitive damages under Alabama’s wrongful death statute, but they would have to apply the general maritime law’s standard for wanton conduct and apportionment of liability.
Judge declined to lift stay in limitation action involving injury claim as there were multiple claims arising from the ownership/operation of the vessel; In re M/V REBEKAH, Nos. 24-cv-237, 24-cv-246, 2025 U.S. Dist. LEXIS 2040 (W.D. Wash. Jan. 6, 2025) (Zilly).
Stephen Dufrene was injured on the M/V REBEKAH, which was docked in Louisiana. The vessel was apparently owned by Magazine Tug, which had entered into an agreement to sell the vessel to Foss Offshore Wind Holdings. Foss Offshore had entered into a bareboat charter agreement with Magazine, which subchartered the vessel to Foss Maritime Co. Another entity, Tradewinds Towing, was Dufrene’s employer. Foss Offshore, Foss Maritime, Magazine, and Tradewinds sought to limit liability, and they filed claims and counterclaims in the limitation actions. Dufrene, who had brought suit in state court in King County, Washington, filed a claim and asked the court to lift the stay based on the single claim exception. Noting the recent decision of the Ninth Circuit in Live Life Bella Vita (see October 2024 Update), Judge Zilly declined to lift the stay, reasoning that lifting the stay “risks exposing to excess liability any parties that the Limitation Act protects”). Judge Zilly also declined to transfer the case to the United States District Court for the Eastern District of Louisiana, holding that the parties’ choice of forum and the presence of the Foss Entities in Washington favored the litigation remaining in Washington (adding that Dufrene received immediate medical treatment in Louisiana, but he is a Virginia resident).
Seaman who was denied employment for failing to take the COVID-19 shot failed to state a claim against his employer and union for conspiring to violate his civil rights (equal protection); Martin v. Masters, Mates, & Pilots, No. 23-cv-4859, 2025 U.S. Dist. LEXIS 4742 (N.D. Cal. Jan. 7, 2025) (Lin).
Daniel B. Martin is a licensed deck officer who has worked on merchant vessels, including those operated by Matson Navigation. Martin is a member of the Masters, Mates, & Pilots Union, which required that all union members be vaccinated against COVID-19 in order to work on Matson Navigation’s vessels. Martin sought a religious exemption to the vaccination requirement, but Matson rejected the request, and Martin’s Union grievance was denied. Martin brought this suit in federal court in California against the Union and Matson Navigation and in his Third Amended Complaint asserted a claim for conspiracy to violate his civil rights—equal protection under Section 1985(3) based on his unvaccinated status. He also brought a claim under state law for medical battery (conspiring “to exert coercive pressure upon Mr. Martin to accept unwanted medical treatment by threatening his livelihood”). The defendants moved to dismiss the complaint. Finding no precent that unvaccinated people are a protected class within the scope of the federal discrimination statute, Judge Lin dismissed the claim for conspiracy to deny Martin equal protection. As the claim under Section 1985(3) was the only federal claim that gave the federal court jurisdiction, Judge Lin dismissed the state claim for medical battery without prejudice for refiling in state court.
Removal of barge that broke free and washed aground on marshland was a “wreck” whose removal was compulsory by law and covered under the vessel’s P&I policy; Wapiti Energy, LLC v. Clear Spring Property & Casualty Co., No. 4:22-cv-1192, 2025 U.S. Dist. LEXIS 4002 (S.D. Tex. Jan. 8, 2025) (Ellison).
Wapiti Energy owns oil storage barges in Louisiana waterways and insured the barges with hull and P&I coverage issued by Clear Spring. When Hurricane Ida struck Louisiana in 2021, Wapiti’s barge SMI 315 broke free and washed aground on marshland owned by ConocoPhillips (coincidentally, Conoco was the charterer of the barge in the leading wreck removal case in the Fifth Circuit interpreting the requirement that the removal be compulsory by law). The barge’s hull remained intact, no oil leaked, and there was no immediate threat of leakage from the grounded barge. Wapiti received bids for removal of the barge and submitted them to Clear Spring pursuant to the wreck removal coverage in the P&I policy (when removal is compulsory by law). Clear Spring paid for the hull damage under the hull policy, but it declined to pay the $926,840.32 for the removal of the barge. Wapiti brought this suit against Clear Spring in federal court in Texas under admiralty and diversity jurisdiction for breach of contract (citing the wreck removal provision in the P&I policy and the sue and labor clause in the hull policy) and for extracontractual remedies under Texas law. The parties brought opposing motions for summary judgment, and Judge Ellison granted the insurer’s motion. With respect to the wreck removal coverage, Judge Ellison cited the interpretation from the Fifth Circuit that there must be a governmental order for removal or a legal duty imposed by statute or by the general maritime law. Wapiti argued that it had an obligation to the landowner to remove the barge, particularly because the barge was carrying crude oil. Judge Ellison disagreed, stating that Wapiti had not identified authority establishing that a non-negligent owner was liable for the cost of removing a wrecked vessel on a third party’s land. ConocoPhillips made no formal demand for removal, and the barge did not interfere with its operations. Judge Ellison did not foreclose the possibility that environmental risks may impose obligations on owners of wrecked ships, but there was no immediate threat of pollution from the barge. Wapiti also argued that the removal was compulsory pursuant to the Wreck Act (applicable to a wreck in a navigable channel). Although the barge ended up primarily in marshland, Wapiti argued that the barge was partially within the navigable waterway. Noting that ships do not use the waterway for navigation, Judge Ellison held that the barge was not blocking traffic and the Wreck Act did not apply. Turning to the sue and labor clause in the hull policy, Judge Ellison reasoned that coverage was for expenditures made by the owner to benefit the insurer to reduce or eliminate a covered loss. Concluding that Wapiti did not establish that its efforts were designed to mitigate the insurer’s losses, Judge Ellison held that there was no coverage for the removal under the hull policy. See April 2023 Update.
Wapiti appealed to the Fifth Circuit, and Judge Wiener began with the ruling from the en banc Fifth Circuit that removal is compulsory by law “when a reasonable owner, fully informed, would conclude that failure to remove would likely expose him to liability imposed by law sufficiently great in amount and probability of occurrence to justify the expense of removal.” He noted that the legal duty can be imposed by statute or under the maritime law, but left unanswered was whether state law could be the source of potential liability that is sufficient to compel removal of a wreck. Judge Wiener held that the compulsion could arise from state law, and he then addressed whether the possibility of a possessory action brought by the possessor of property to restore enjoyment of his property (removal of the barge) made removal of the SMI 315 compulsory by law. The court agreed with Wapiti that the Louisiana possessory action make the removal compulsory by law and that a reasonable vessel owner would consider the stranding of the barge on the property of a third party to expose the vessel owner to the cost of removal. Therefore, Judge Wiener held that the possibility of a Louisiana possessory action made removal of the barge compulsory by law and that Judge Ellison erred in granting summary judgment to Clear Spring. See August 2024 Update.
Back in the district court, Judge Ellison considered the coverage of the P&I policy for the expense of “removal of the wreck of the vessel . . . when such a removal is compulsory by law. The Fifth Circuit determined that the removal was compulsory by law, but the parties disagreed whether the barge’s condition qualified the barge as a “wreck.” Judge Ellison cited the definition of a wreck from caselaw as “a sunken vessel damaged so extremely that it is unnavigable” and concluded that the “most important variable in ‘wreck’ inquiries is whether the vessel is ‘navigable.’” Clear Spring argued that the barge was navigable because it was floated free and towed back to Wapiti’s facility without any need for maintenance or repair. Judge Ellison disagreed that the need for maintenance or repair was necessary for a vessel to be a wreck. Instead, he reasoned that the necessity of pulling power to remove the barge from a location from which it was unable to unmoor itself and independently navigate was sufficient for the barge to be considered unnavigable and a wreck. Therefore, he concluded that the wreck removal provision of the policy was applicable. Clear Spring then raised defenses that the amount of recovery should be reduced because of Wapiti’s alleged non-compliance with the policy’s warranted hurricane plan and because of Wapiti’s over-insurance of the barge. Judge Ellison rejected the argument that over-insurance on the hull had an effect on the P&I provisions of the policy as the evidence indicated that the market value of the vessels did not control or influence the underwriter’s decision with respect to the P&I limits. Judge Ellison did find fact issues to be resolved on whether Wapiti provided Clear Spring with a written and signed copy of a hurricane plan and how a failure to comply with the hurricane plan would affect the damages for the removal. Accordingly, he declined to decide the amount of damages on a summary basis. The final issue presented was whether Clear Spring breached its duty of good faith and fair dealing by denying the claim for wreck removal. Clear Spring asserted several reasons to justify its nonpayment, but Judge Ellison found that there was a bona fide controversy over what the term “wreck” meant and whether the barge satisfied the requirements of that definition. Therefore, Wapiti was not entitled to summary judgment.
Judge dismissed count in passenger’s complaint that included multiple theories of negligence and dismissed negligence claims based on a theory of the cruise line’s mode of operation, as that theory is unavailable under the general maritime law; Nowak v. Carnival Corp., No. 24-cv-24316, 2025 U.S. Dist. LEXIS 4467 (S.D. Fla. Jan. 9, 2025) (Scola).
Marissa C. Nowak, a passenger on the CARNIVAL MIRACLE, slipped and fell down a flight of stairs on the vessel when her foot became trapped by the stairs. Nowak brought this suit against the cruise line in federal court in Florida, alleging general negligence, negligent failure to maintain, and negligent failure to warn. The cruise line moved to dismiss most of the complaint, and Judge Scola agreed that the general negligence count was improperly pleaded because it attempted “to cram multiple, distinct theories of liability into one claim.” He explained that the count alleged several distinct theories of negligence, ranging from failing to provide a safe, properly maintained staircase; to failing to follow its own internal operating procedures regarding review and maintenance of staircases; to failing to train its crew in risk assessment and safe practices. Although Nowak argued that she was not actually asserting the claim of negligently failing to train employees (that was pleaded in the count), and that the allegations were relevant to delineate the scope of discovery she would seek, Judge Scola responded: “But allowing the Plaintiff to include such allegations in a broad negligence count in the hopes that discovery reveals facts to support the claim would improperly and ‘inexorably broaden the scope of discovery.’” The cruise line also moved to dismiss allegations in all three counts that constituted a claim for negligent mode of operation which is not recognized under the general maritime law. Judge Scola quoted Judge Bloom’s summary of the law on negligent mode of operation: “This theory of liability ‘looks to a business’s choice of a particular mode of operation and not events surrounding the plaintiff’s accident.’ According to the Eleventh Circuit, such a theory of negligence is ‘at odds with admiralty law’s requirement that a cruise ship must have notice of the dangerous condition.’” (citations omitted). Although Nowak argued that she was not bringing a claim for negligent mode of operation, Judge Scola answered that she specifically alleged breaches of duty for failing to follow the cruise line’s internal operating procedures and failing to promulgate and/or enforce adequate policies and procedures. Concluding that these allegations failed to plead cognizable claims because they were unconnected to the specific accident, Judge Scola held that any negligence claim based solely on those allegations would be dismissed with prejudice (noting that the allegations may be relevant in proving valid claims for negligence).
Conclusory allegation of notice was insufficient in passenger’s complaint for fall on cruise ship; Williams v. Carnival Corp., No. 1:24-cv-23385, 2025 U.S. Dist. LEXIS 5272 (S.D. Fla. Jan. 10, 2025) (Moore).
Angie Williams, a passenger on the CARNIVAL CONQUEST, was injured when she fell while descending a stairway on the first deck of the vessel (asserting that the fall was caused by a foreign substance that was allowed to remain on the stairs). She brought this suit against the cruise line in federal court in Florida, alleging a single negligence count with multiple theories of liability, including failure to maintain, failure to warn, failure to train, failure to monitor its employees, and failure to enforce its policies and procedures. The cruise line moved to dismiss the complaint for failure to allege notice, and Williams cited her assertion that the cruise line should have been aware of the danger and should have taken precautionary measures to ensure that the passengers would not be injured. Judge Moore answered that the complaint was silent on when or how the cruise line should have become aware of the dangerous condition. As there was nothing establishing notice more than the conclusory allegation, Judge Moore dismissed the complaint with leave to file an amended complaint [Williams’ counsel might want to read the preceding Nowak decision before repleading all of the negligence theories in a single count].
Protected species observer/passive acoustic monitoring operator on dive support vessel working on a pipeline construction project was not a seaman, and his suit in state court was removable; Shead v. C-Dive, LLC, No. 24-cv-2655, 2025 U.S. Dist. LEXIS 4869 (E.D. La. Jan. 10, 2025) (Barbier).
Bradley Shead, an employee of Marine Ventures International, was working on the M/V LADY MONROE, a dive support vessel, during a pipeline deconstruction project in the Gulf of America. His duties as a protected species observer and a passive acoustic monitoring operator were to monitor wildlife during the project and to shut down anthropogenic sound if he spotted a protected species in the zone of operation (his work was required for the project under the Endangered Species Act and Marine Mammal Protection Act). He was injured while descending a set of stairs, and he brought this suit in state court in Terrebonne Parish, Louisiana against the bareboat charterer of the vessel, C-Dive, asserting that C-Dive was his joint employer and that he was entitled to recover against C-Dive as a seaman under the Jones Act and general maritime law. C-Dive removed the case to federal court based on diversity, arguing that the seaman’s claims were fraudulently pleaded. Shead moved to remand, but Judge Barbier concluded that Shead was not a seaman and denied the motion to remand. First, Judge Barbier held that Shead failed the requirement that the worker’s duties must contribute to the function or mission of the vessel, citing cases such as the O’Boyle case from the Eleventh Circuit, which held that a scientific observer on a fishing vessel was not a seaman when he was onboard solely because a treaty required him to be onboard to observe marine life. Judge Barbier added that Shead did not assist in the operation of the vessel or in the deconstruction of the pipeline, which was the mission of the vessel. Judge Barbier then turned to the connection test and its nature element as defined in the Fifth Circuit’s Sanchez case and its duration element as defined by the Supreme Court in Chandris. Judge Barbier reasoned that Shead was a specialized transient worker employed to perform a specific short-term job on the vessel that ended when the deconstruction was completed. After that job, Shead would return home to await another assignment from Marine Ventures. Accordingly, Judge Barbier concluded that Shead did not have a connection to a vessel or fleet of vessels that was substantial in duration and nature.
Machinist mate on the USS SARATOGA failed to establish causation for his lung cancer from his work on valves and pumps of Atwood & Morrill and Warren Pumps; Edmonds v. Air & Liquid Systems Corp., No. 8:22-cv-825, 2025 U.S. Dist. LEXIS 5737 (M.D. Fla. Jan. 13, 2025) (Honeywell).
Arnold Edmonds asserts that he contracted non-small cell lung carcinoma from exposure to asbestos while he served as a machinist mate on the aircraft supercarrier USS SARATGOGA from 1962 to 1964. He brought suits in state court in Hillsborough County, Florida against suppliers of parts and machinery for the SARATOGA under theories of negligence and strict liability, and the suits were removed under the Federal Officer Removal Statute and consolidated in federal court in Florida. The defendants sought to exclude or limit the testimony of Edmonds’ industrial hygienist expert, Dr. Candace Su-Jung Tsai, primarily because her testimony did not opine on exposure from the products of the respective defendants. The defendants complained that Dr. Tsai opined generally on Edmonds’ exposure to asbestos on the vessel and other workplaces and not on whether a specific product caused his asbestos-related cancer. Judge Honeywell found no authority that the expert must opine on whether a specific product caused the cancer in order for the testimony to be admissible. Recognizing that maritime law requires evidence of the specific exposure for a defendant, Judge Honeywell explained that the argument presented by the defendants relates to the sufficiency of evidence of causation and not the admissibility of the expert’s testimony. Finding Dr. Tsai’s methodology to be sufficiently reliable, Judge Honeywell declined to exclude the opinions, stating that the arguments were “more appropriate for consideration on a summary judgment order, or as to the weight of the expert testimony, not its admissibility.” See August 2024 Update.
Two of the suppliers moved to exclude or limit the testimony of Edmonds’ expert, Dr. David Zhang, a physician specializing in pathology and occupational medicine, who opined, after considering Edmonds’ exposure to asbestos, his history of smoking, and his family history of cancer, that Edmonds has asbestos-related lung cancer, and that his exposures to asbestos were substantial contributing factors to the development of his asbestos-related lung cancer, asbestosis, and pleural plaque. The defendants argued that maritime law requires a medical causation expert to opine that the defendant’s product caused the plaintiff’s injury and that opinions based on “cumulative exposure” should be rejected. Judge Honeywell considered the divergent case law on this issue and agreed with the defendants that the following statement from Dr. Zhang was improper: “the cumulative exposure of each asbestos-containing product significantly contributed to the development of [Plaintiff’s] lung cancer.” However, Judge Honeywell found the following statement to be sufficiently reliable to survive the Daubert challenge: “that all of Mr. Edmonds’ asbestos exposures increased his risk of asbestos-related lung cancer in a cumulative, dose related manner and that all of Mr. Edmonds’ exposures that are found to be regular, frequent and proximate were substantial contributing factors to the development of his asbestos-related lung cancer, asbestosis and pleural plaque.” See October 2024 Update.
Valve supplier Atwood & Morrill (now Valves and Controls US) and pump supplier Warren Pumps moved for summary judgment, contending that Edmonds failed to meet his burden on causation with respect to their products. Edmonds testified that he replaced gaskets and packing on valves from Atwood and at least seven other suppliers. He changed gaskets on valves every four to six weeks, and the process resulted in his breathing asbestos-containing dust. Edmons identified Warren Pumps as one of 8 suppliers of pumps on the SARATOGA, but he was not sure whether he changed any packing or gaskets on Warren pumps. Judge Honeywell noted that in order for Edmonds to establish causation under the general maritime law, he would have to demonstrate that his exposure to each defendant’s product was a substantial factor in causing his disease. With respect to Atwood, Judge Honeywell agreed that Edmonds had established that Atwood valves were on the vessel (based on his testimony, ship documents and blueprints, and the affidavit of his expert witness, Captain Bruce Woodruff). Judge Honeywell also concluded that Edmonds demonstrated a genuine issue as to whether the Atwood valves contained asbestos “by making a chain of inferences from his deposition testimony, Captain Woodruff’s inventory of the relevant products used on the ship’s steam rooms, and Captain Woodruff’s opinion as to the applicable Navy regulations that would require asbestos to be used on certain valves.” However, Judge Honeywell held that Edmonds failed to satisfy his burden to prove that Atwood valves were a substantial factor contributing to Edmonds’ disease. She reasoned that Edmonds had failed to present evidence of the amount of asbestos dust to which he was exposed or the duration of the exposure, explaining that he did not present evidence of “exposure to a specific Atwood product on a regular basis over some extended period of time in proximity to where he actually worked.” Therefore, she granted summary judgment to Atwood. Similarly, Judge Honeywell held that the evidence failed to establish exposure to Warren Pumps’ products for a substantial period of time, adding that Edmonds’ testimony regarding exposure was general as to the tasks he performed and how long they took. As Edmonds recalled little when it came to Warren products, Judge Honeywell granted summary judgment to Warren Pumps.
Seaman’s inconsistent responses to medical questionnaires about his back problems together with the seaman’s interview with the human resources director were sufficient to deny the employer’s motion for summary judgment (based on a McCorpen defense) on the seaman’s maintenance and cure claim; biomechanical expert who is not a doctor was allowed to testify that the forces of the seaman’s fall would not have caused his injuries; Milne v. Westbank Fishing, LLC, No. 24-cv-1179, 2025 U.S. Dist. LEXIS 6765, 8440 (E.D. La. Jan. 14, 26, 2025) (Ashe).
Timothy Milne was first hired by Westbank Fishing in March 2022 as a seaman on one of its vessels for the 2022 fishing season (April to November). He responded on his medical questionnaires that he did not have any disabilities or adverse physical conditions, and he checked “no” next to a question asking if he currently had or previously had “back/neck problems.” However, he answered “yes” in response to a question about back trouble and wrote “back trouble,” and he responded that he had degenerative disc disease diagnosed in 2021 involving the two bottom discs of his spine in response to a workers’ compensation questionnaire. Milne was hired and successfully completed that fishing season. When Milne applied to work for Westbank for the 2023 season, he reported that he had back issues and again checked “no” next to back/neck problems on the list of medical conditions. Milne’s human resources director met with Milne to discuss his conditions, and Milne explained that he had previous back problems for which he underwent physical therapy and continued to follow a home exercise program, but that the condition did not prevent him from performing his job. Westbank did not request any additional information or examination, and it allowed Milne to return to work. Milne was injured during the 2023 fishing season while working as the second engineer aboard the F/V MARY VIRGINIA when he slipped on a slick substance and fell 14 feet from the gunnel of a purse boat onto the main deck of the MARY VIRGINIA. Westbank paid maintenance and cure, and Milne brought this suit against Westbank in federal court in Louisiana, seeking to recover under the Jones Act and for maintenance and cure. Westbank asserted a McCorpen willful concealment defense, arguing that Milne failed to state that he was actively participating in physical therapy, taking medication, seeking a surgical recommendation, and was having difficulty performing his job as a rigger at another company. Westbank added that his “tepid disclosure” and misrepresentation of his recent treatment were material because had he fully disclosed his back issues, Westbank would have required additional tests and a more comprehensive medical examination that likely would have resulted in his not being hired. Judge Ashe held that Westpark had failed to establish that it was entitled to summary judgment on two of the elements of a McCorpen defense. Although Milne did not specifically state that he had recently received physical therapy and taken medication for his back, he did disclose the fact that he had suffered from back trouble and had taken hydrocodone. Judge Ashe believed there was a dispute whether Milne intentionally concealed or misrepresented facts, and he also found a question on materiality in light of the reports of back problems, the successful completion of the 2022 season, and the interview with the human resources director who allowed Milne to go to work without asking for any additional tests or examination. Accordingly, Judge Ashe declined to grant summary judgment to Westbank on Milne’s maintenance and cure claim.
Milne sought to exclude the testimony of Westbank’s biomechanical expert, Dr. Marzieh Ardestani, who opined that Milne most likely experienced a sliding fall and that his fall would not have resulted in hyperflexion of his spine that was necessary to cause his injuries. Milne did not dispute that Dr. Ardestani is qualified to testify as an expert in biomechanics; however, he argued that she could not offer opinions on medical causation (“the structural injuries observed in the spinal discs are not aligned with the dynamics of the incident in question”). Judge Ashe cited his previous ruling in another case that a biomechanical expert, who is not a medical doctor, may “explain the forces involved in the accident and whether those forces are likely to generate the types of injuries [the]plaintiffs allege,” but that the expert “may not offer opinions about the precise cause of a specific injury, including, for example, that the injury was caused by degenerative changes, rather than a one-time traumatic event.” The opinion of Dr. Ardestani was similar to the opinion previously allowed by Judge Ashe. Dr. Ardestani did not opine on the precise cause of a specific injury but that the forces of Milne’s fall would not have caused his injuries. Accordingly, Dr. Ardestani’s report was within the scope of her expertise in biomechanics.
Judge in limitation action resulting from injury to seaman declined to bifurcate trials on liability/limitation and damages; Judge sustained objections to some of the opinions of the seaman’s liability expert because they were improper legal conclusions, speculative, or not helpful to the fact finder; Alexander v. Intracoastal Tug & Barge Co., Nos. 23-cv-2566, 23-cv-7278, 2025 U.S. Dist. LEXIS 6767, 13521 (E.D. La. Jan. 14, 27, 2025) (Africk).
Brandeon Alexander was employed by Intracoastal Tug as a seaman on the M/V CALIFORNIA CHROME. While working on the vessel at the Houston Fuel Oil ship dock #3, Alexander reached for a line on a piling, and his arm was crushed between the barge and the piling. Alexander brought suit against Intracoastal Tug in federal court in Louisiana, seeking to recover under the Jones Act and general maritime law, and Intracoastal Tug filed a limitation action in the Louisiana federal court. The cases were consolidated, and Intracoastal moved to bifurcate the trial, proposing that the court hold a bench trial with respect to the limitation action (including liability and apportionment of fault) and then hold a jury trial on the remaining issues at a later date in the event the court denied limitation. Judge Africk considered the procedure proposed by Intracoastal to be “inconvenient, inexpedient, and uneconomical” as it would “require this Court to hold two trials, requested on separate dates, when both Alexander’s right to trial by jury and Intracoastal’s right to limitation can be vindicated within a single trial on the same date.” Judge Africk favored a procedure in which “the plaintiff’s Jones Act and related claims are tried to a jury, and the remaining issues as to petitioner’s right to limitation of liability [are] tried to the judge.” He explained: “If the jury should find for the Intracoastal Interests as to Alexander’s Jones Act, unseaworthiness, and maintenance and cure claims, then there will be no need to adjudicate Intracoastal’s right to limitation.” Therefore, he declined to grant the motion to bifurcate.
Alexander retained Gary Hensley, a marine safety expert with 30 years of hands-on experience towing vessels, to review the actions and omissions of the parties in the litigation, and Intracoastal moved to exclude 15 of Hensley’s opinions on the grounds that they were improper legal conclusions, speculative and insubstantial, and invaded the province of (or did not assist) the factfinder. His opinion, based on his knowledge and experience, that Intracoastal did not provide Alexander with a safe place to work and that the vessel was not adequately crewed was not inadmissible as an improper legal conclusion. Judge Africk held that Hensley may not testify that the vessel was unseaworthy, but he could testify with regard to the lack of an adequate and trained crew. Judge Africk did not exclude the opinion that there was a great possibility that Intracoastal violated the 12-hour rule for its captain (on the ground that it is an impermissible legal conclusion), reasoning that the opinion did not tell the jury how the verdict form should be read. He excluded as speculative the opinion that the rudder may have been bent and could have contributed to the injury, as the rudder fell off 19 days later. He excluded opinions with respect to the training of a deckhand as there was no evidence regarding his training. Judge Africk held that opinions about the navigation of the ship and flattening of the tow at the dock were admissible; however, the opinion that the captain could have been distracted was speculative. Judge Africk excluded several “opinions” that were merely recitations of the facts that do not serve to assist the trier of fact, and he allowed the expert to testify as to applicable safety procedures and the noncompliance with them, but not as to the duty and breach with respect to the procedures. Finally, he excluded the opinion that the captain had the duty to exercise such reasonable care as a prudent mariner would exercise under similar circumstances as it is an inadmissible statement of the law that encroaches on the role of the court.
Suit brought in small claims court by vessel owner against boat works that provided winter storage for his boat was not removable under 28 U.S.C. Section 1292(a)(3); Strom v. Lockwood Boat Works Inc., No. 24-cv-9179, 2025 U.S. Dist. Lexis 6857 (D.N.J. Jan. 14, 2025) (Kirsch).
Brian Strom asserts that he paid $3,888.96 for winter storage and to winterize his boat. When the boat was returned, it was leaking. Strom claimed that Lockwood Boat Works cracked the tops of the sea strainers and bent/broke the sealing brackets. Strom brought suit in small claims court in Middlesex County, New Jersey, seeking to recover $4,181.33 plus costs, and Lockwood Boat Works removed the case to federal court, stating that the court had jurisdiction “by reason of the Application of General Maritime Law of the United States within the meaning of 28 U.S.C. Sec. 1292(a) (3) [the statute permitting interlocutory appeals in admiralty cases] in that the Action arises under the Laws of the United States, as appears from the Complaint.” Strom moved to remand the case because the damage occurred on land and federal admiralty law did not apply. Quoting Romero, which involved removal of admiralty cases based on the federal question jurisdiction, Judge Kirsch reasoned that permitting removal of admiralty cases to federal courts “would make considerable inroads into the traditionally exercised concurrent jurisdiction of the state courts in admiralty matters.” He added that a review of the complaint did not reflect any reference to admiralty jurisdiction and only involved “basic principles of negligence, breach of contract, and property damage—claims that are properly adjudicated under state law.” Judge Kirsch concluded: “Plaintiff sought to bring his claims in Small Claims Court, and pursuant to the ‘saving to suitors’ clause of 28 U.S.C. § 1331(1) [federal question jurisdiction], he is entitled to have his claims heard there.” Therefore, Judge Kirsch remanded the case.
Subcontractor that sustained property damage from a fire while working on a Navy vessel was awarded damages for its property based on the negligence of the United States; California Marine Cleaning, Inc. v. United States, No. 22-cv-741, 2025 U.S. Dist. LEXIS 7354 (S.D. Cal. Jan. 14, 2025 (Ohta).
The Naval Sea Systems Command awarded National Steel and Shipbuilding (NASSCO) a contract to perform repair work on the USS BONHOMME RICHARD, which was pier-side at the San Diego Naval Base. NASSCO subcontracted to California Marine the work of flushing, cleaning, and making gas free the tanks throughout the vessel. A fire broke out on the vessel, and some of California Marine’s equipment was destroyed, preventing it from completing its work. The Navy determined that it was failures by the Navy that caused the fire. California Marine brought this action against the United States in federal court in California under the Public Vessels Act, and, alternatively, under the Suits in Admiralty Act, seeking to recover on a maritime tort theory. The United States argued that California Marine had not exhausted its remedies under the Contract Disputes Act and that California Marine could not avoid the jurisdictional bar contained in the CDA by alleging this contract dispute in the language of a tort claim. Judge Burns agreed that NASSCO could not sue the United States on a contract claim until it exhausted its remedies in the CDA, but that did not preclude California Marine from bringing a maritime tort claim (California Marine did not have a contract with the Navy, and it did not assert any contract claim). The United States argued that California Marine’s equipment was only on the ship because of the contract for repair, but Judge Burns did not believe that the location and context of the tort rendered the claim contractual in nature. Finally, the United States argued that California Marine’s subcontract provided that the parties would settle all disputes through the CDA process. However, Judge Burns responded that the regulations for the CDA process “shouldn’t be read to radically alter tort liability or sovereign immunity across the vast web of government contracts.” Consequently, Judge Burns declined to dismiss California Marine’s tort claims. See September 2023 Update.
The case was reassigned to Judge Ohta, who held a bench trial at which California Marine submitted two exhibits—an Executive Summary of the Navy’s “Command Investigation into the Fire Aboard USS BONHOMME RICHARD” and California Marine’s Estimated Damages Chart. Judge Ohta admitted the documents over the objections of the United States and found that the United States was negligent for failing to adequately prepare for a fire and failing to employ proper firefighting techniques (she did not find that the United States was engaged in ultrahazardous activity). Judge Ohta awarded damages for the replacement of damaged equipment in the amount of $305,620.
Magistrate Judge granted summary judgment in suit involving passenger’s fall on staircase because the danger of the step and handrails was not capable of detection and the cruise line could not have had notice of a hazard that was not detectable; Benoit-Prevost v. NCL (Bahamas) Ltd., No. 23-cv-24632, 2025 U.S. Dist. LEXIS 7892 (S.D. Fla. Jan. 14, 2025) (Goodman).
Kamille Benoit-Prevost, a passenger on the NORWEGIAN SKY, was descending a curved staircase in one of the ship’s atrium areas on her way to a restaurant when she lost her balance on a loose/unstable stair and fell down the stairs. She brought this suit against the cruise line in federal court in Florida, and her expert opined that it was more likely than not that the second step from the top became loose over a period of weeks, months, or years before the accident due to the constant vibration of the steel ship. The expert also opined that the railings on both sides of the staircase violated industry standards as they were too large, non-graspable, and prevented her from stopping her fall. The cruise line moved for summary judgment, contending that Benoit-Prevost failed to establish that the cruise line had knowledge of the dangerous conditions before the accident. Benoit-Prevost argued that the cruise line had constructive notice of the condition of the stair because, based on the expert testimony, the defect existed for weeks and that was enough time for the cruise line to have found and repaired the loose step at the top of a busy atrium staircase. Chief Magistrate Judge Goodman answered: “Unfortunately for Plaintiff, that is not enough.” Even though the crew and passengers may have used the staircase repeatedly, and even though there may have been a handrail that failed to comply with safety standards, there was no evidence indicating that the conditions were reasonably detectable. Chief Magistrate Judge Goodman reasoned: “Unless there is something about the hazard that should have ‘invited’ [the cruise line] to take corrective action, notice cannot be imputed simply by the passage of time.” He added: “If the supposed danger was not capable of detection, then, without the existence of prior falls caused by the alleged hazard, it would not matter whether the not-detectable condition existed for one day, one month, one year, or one decade.” Accordingly Chief Magistrate Judge Goodman granted the motion for summary judgment for failure to establish that the cruise line had notice of the dangerous conditions.
Tolling agreement to extend one-year limitation period in ship repair contract was effective even though no mediation was held within the period for the mediation; opinions of liability experts for vessel’s hull insurers were sufficiently premised and were not impermissible with respect to regulations that were admissible in connection with the standard of care; Judge agreed to give an adverse inference for spoliation for the discarding of a wire rope that failed during the lowering of a yacht into the water and for the disassembly of the engine of the boat hoist before other parties could examine it, but he decline to find spoliation with respect to loss of part of an electrical cable that was cut during the attempt to prevent further damage to the vessel; fact disputes prevented summary judgment on the liability of inspecting companies and on the liability of the shipyard for gross negligence (alleged to avoid the $300,000 limit of liability in the repair contract; MS Amlin Marine NV v. Delta Marine Industries Inc., No. 2:23-cv-14, 2025 U.S. Dist. LEXIS 18083 (W.D. Wash. Jan. 31, 2025) (Whitehead).
Delta Marine entered into a vessel repair contract with the owner of the 163-foot pleasure yacht TRITON at Delta Marine’s facility on the Duwamish River in Seattle, Washington. The shipyard used a boat hoist named BIG BOB to lift the TRITON out of the water. The insurers for the owner of the TRITON argued that it weighed about 956,000 pounds, and BIG BOB had a rated lift capacity of 880,000 pounds (Delta Marine asserted that BIG BOB’s manufacturer promised that the hoist was capable of lifting 125% of the capacity, 1,102,311 pounds). After the work was completed on the TRITON, Delta Marine used BIG BOB to lower the TRITON into the Duwamish River, but the hoist failed, and the aft end of the TRITON dropped into the river, resulting in partial flooding of the vessel. Delta Marine asserted that an electrical cable was severed and that it cut and respliced the severed cable in order to finish lowering the TRITON into the water, but Delta Marine does not know where the potentially defective piece of cable is. Several links from the R2 hoist chain, which broke during the incident, were not recovered from the Duwamish River. During the investigation after the accident, a representative of Marine Travelift, manufacturer of BIG BOB, allegedly told the captain of the TRITON that a severed wire rope that snapped during the accident was unrelated to the failure of BIG BOB and could be discarded, so Delta Marine threw it away. About 9 days after the accident, Delta Marine disassembled BIG BOB’s motor and tested its components without notifying any interested party or insurer. Arxcis Inc. inspected and certified BIG BOB annually, and Kendrick Equipment regularly inspected BIG BOB for Marine Travelift. The hull insurers for the TRITON paid the owner $3,448,110.86 for repair to the vessel and brought this action in admiralty in federal court in Washington against Delta Marine, Marine Travelift, Kendrick Equipment, and Arxcis, alleging gross negligence against Delta Marine, Kendrick, and Arxcis, negligence against Kendrick Equipment and Arxcis, breach of contract against Delta Marine, products liability against Marine Travelift, and spoliation against Delta Marine. All of the parties filed motions for summary judgment, and Judge Whitehead applied maritime law to the tort and contract claims. Delta Marine argued that the plaintiffs’ claims were time-barred pursuant to the one-year limitation period in the vessel repair contract. However, the parties agreed to a tolling agreement by which they agreed to submit the dispute to a pre-suit mediation within 120 days, and the agreement would remain in effect until 20 days after the conclusion of the mediation. The mediation was repeatedly cancelled and rescheduled, past the 120-day period, and the plaintiffs eventually proceeded with this suit without further waiting for the mediation. Delta argued that the extension had expired, but Judge Whitehead answered that, as the mediation did not occur, the tolling provision had not terminated. Additionally, Judge Whitehead found that Delta Marine’s repeated attempts to schedule the mediation after the 120-day period equitably estopped it from asserting that the claims were time barred. Delta Marine moved to exclude the opinions of naval architect Dr. Patrick Hudson (as well as the opinions of Michael Venturella) with respect to the weight of the TRITON in support of his analysis of the cause of the failure of the BIG BOB (opining that the R2 hoist chain broke and caused the large failure because BIG BOB was overloaded). Although noting that the experts could have been more specific about their methods, Judge Whitehead was satisfied that the experts used reliable principles and methods. Judge Whitehead also disagreed with Delta that the experts’ testimony about regulations and other legal requirements that may apply to Delta Marine was impermissible, responding that he would consider the regulations as evidence of the standard of care alongside other evidence (Judge Whitehead excluded some of Delta Marine’s experts for failure to comply with the disclosure requirements of Rule 26). Judge Whitehead then addressed the plaintiffs’ arguments that Delta Marina had spoliated evidence, rejecting the argument that it did not anticipate litigation, stating that “any reasonable person should anticipate getting sued after partially sinking a 163-foot pleasure yacht—especially if that person had a vessel repair contract with the yacht’s owner that limited liability to $300,000 absent a finding of gross negligence.” He held that Delta Marine consciously and willfully disregarded its discovery obligations when it discarded the wire rope that snapped and when it tested and disassembled the failed motor before other parties could examine it. Judge Whitehead was unpersuaded that Delta Marine did not have a culpable mental state when it discarded the rope in reliance on the statement of the representative of Marine Travelift that the rope could be thrown away, answering that Delta Marine may not have acted with malicious intent, but it should have known that it needed to preserve the components of BIG BOB. Judge Whitehead did not find that Delta Marine acted with a culpable mindset when it spliced and lost portions of the severed electrical cable during the accident because it was responding to an emergency and attempting to mitigate damages. Reasoning that Delta Marine’s actions with respect to the wire rope and disassembly of the engine involved a high degree of fault, Judge Whitehead concluded that an adverse inference was appropriate for those violations. Arxcis, Kendrick, and the plaintiffs filed motions for summary judgment, and Judge Whitehead agreed that Arxcis and Kendrick owed a duty of reasonable care to the plaintiffs. However, Judge Whitehead found fact disputes that prevented summary judgment to Arxcis, Kendrick, or the plaintiffs. Finally, Judge Whitehead considered the cross-motions for summary judgment on the plaintiffs’ claim against Delta Marine for gross negligence (in order to avoid the limitation of liability to $300,000 in the vessel repair contract). The plaintiffs argued that Delta Marine was guilty of gross negligence because it repeatedly overloaded BIG BOB in violation of the manufacturer’s warning to NEVER OVERLOAD A WIRE ROPE. As Delta Marine responded with evidence that the TRITON weighed less than or close to the weight limit, Judge Whitehead found a fact dispute that precluded summary judgment on the claim of gross negligence.
Estate of adventurer who died in the implosion of the submersible TITAN, which was exploring the wreckage of the TITANIC, sufficiently alleged seaman status to avoid removal of his suit in state court because the decedent received free passage as compensation for his services during the voyage; Ortoli v. Oceangate Inc., No. 2:24-cv-1223, 2025 U.S. Dist. LEXIS 18098 (W.D. Wash. Jan. 31, 2025) (King).
This case arises from the 2023 implosion of the submersible TITAN in the North Atlantic off the coast of Newfoundland as it descended to the shipwreck of the TITANIC, resulting in the death of everyone who was on the TITAN. Paul-Henri Louis Emile Nargeolet, a diver and adventurer who had participated in 37 dives to the wreckage of the TITANIC, was one of those who died in the implosion. Richard Ortoli, administrator of Nargeolet’s estate, brought this suit in state court in King County, Washington against the parties alleged to own, operate, control, and man the TITAN, alleging claims for negligence and gross negligence under the maritime law and under the Jones Act, unseaworthiness under the maritime law, products liability under the maritime law and the Washington Product Liability Act, and wrongful death under Washington state law. One of the defendants, Janicki Industries, removed the case to federal court based on diversity (as a snap removal before the other defendants were served), and Ortoli moved to remand the case on the ground that he pleaded a Jones Act claim that is not removable. Janicki argued that a Jones Act claim is only available against the worker’s employer, and Ortoli did not allege that any of the defendants employed Nargeolet. Janicki asserted that Nargeolet was an unpaid passenger, not an employee, and that Nargeolet was on board for “validation and buzz” rather than as a paid employee. The President of Janicki presented declarations that it had not employed or paid Nargeolet and had no responsibility for supervising or directing any crew members or passengers. Declarations from the other defendants likewise stated that Nargeolet was not an employee. Judge King was not persuaded, citing the allegations that Nargeolet was hired as an employee of defendant OceanGate because of his “deep knowledge and prior experience of the Titanic shipwreck site,” and that he was compensated for his work by free passage in exchange for his services (while the other passengers had to donate $250,000 for their spots on the vessel). Accordingly, Judge King concluded that the Jones Act claim was not fraudulently pleaded as to defendant OceanGate, which barred removal. Alternatively, Janicki argued that the judge should sever and remand the Jones Act claims and retain the others, which is a procedure available when claims are removed under the federal question jurisdiction. However, Janicki removed the case based on diversity, and the sever-and-remand procedure is not available for cases removed based on diversity. Judge King declined to award attorney fees to Ortoli, reasoning that Janicki had an objectively reasonable belief that the Jones Act claim was fraudulently pleaded because none of the defendants employed Nargeolet.
From the state courts
State judge compelled arbitration of seaman’s claims based on state arbitration statute; Sanzo v. Atlantic Capes Fisheries, Inc., No. 2473CV00151 (Mass. Super. Ct., Bristol Cty. Jan. 8, 2025) (Cloutier).
Richard Sanzo was hired as a deckhand by Atlantic Harvesters, LLC to serve on the F/V ENTERPRISE. Sanzo signed an employment agreement (Continuing Crew Terms of Employment For All Voyages) that contained an arbitration agreement for any dispute or claim arising out of his work as a crewmember, including claims under the Jones Act and general maritime law. Sanzo was injured on the vessel two days later and brought suit in state court in Bristol County, Massachusetts, seeking to recover under the Jones Act and general maritime law. The defendants removed the case to federal court, but Judge Stearns remanded the case to state court. The defendants filed an action for limitation of liability, but Judge Stearns dismissed the limitation action. The defendants then moved the state court to compel arbitration and to dismiss the state action, and Judge Cloutier agreed. Sanzo argued that he was a seaman and that the Federal Arbitration Act did not permit arbitration, but Judge Cloutier held that the FAA did not apply. Therefore, she considered the defendants’ argument that the agreement should be enforced under Massachusetts law. Sanzo argued that he did not have time to properly review and understand the arbitration provision before signing it and that the arbitration agreement was unconscionable. Judge Cloutier disagreed. She noted that the Agreement was a three-page document and that the arbitration provision was in bold and all capital letters. She added that Sanzo had ample time to review the Agreement in the period during the few hours between when he received the Agreement and when the ship left and that he had signed and initialed the page containing the arbitration provision. The fact that Sanzo did not read the Agreement did not excuse him from abiding by its terms. Judge Cloutier then turned to the issues of substantive and procedural unconscionability. For substantive unconscionability (the terms were oppressive to one party), Judge Cloutier answered that either party could invoke the right to arbitrate and that there was no unfair surprise to Sanzo. For procedural unconscionability (the circumstances surrounding the formation of the contract reflected that the aggrieved party had no meaningful choice), Judge Cloutier noted that the arbitration provision was part of an adhesion contract, but that was insufficient to render the provision unconscionable as there were no unfair circumstances (adding that other courts have compelled arbitration with nearly identical arbitration provisions). Finally, Sanzo argued that the defendants had waived their right to enforce the arbitration provision by participating in litigation for 11 months before moving to compel arbitration, including the removal and limitation action. Judge Cloutier responded that the defendants had consistently reserved their right to compel arbitration, that the removal and limitation proceedings did not overcome the policy favoring enforcement of arbitration agreements, and the litigation was still in its infancy. Accordingly, Judge Cloutier granted the motion to dismiss and to compel arbitration. Thanks to Brian McEwing of Reeves McEwing LLP in Dorchester, N.J. for bringing this case to our attention.
Alabama’s abrogation of the collateral source rule was not compatible with the maritime collateral source rule, and the state court did not err in excluding evidence that an injured worker’s medical bills were paid by the workers’ compensation carrier; Exxon Mobil Corp. v. Harrington, Nos. SC-2023-0401, SC-2023-0424, 2025 Ala. LEXIS 1 (Ala. Jan. 10. 2025) (Stewart).
Adam P. Harrington, a fire-suppression-equipment inspector employed by Skelton’s Fire Equipment, was injured while using a swing rope to transfer to a transport vessel from Exxon’s offshore gas platform located in Mobile Bay. On the date of the transfer the seas were rougher than Harrington had previously experienced. Harrington mistimed his swing with the rise and fall of the vessel, and he dropped three feet onto the deck of the vessel, fracturing his leg. Harrington brought this suit against Exxon in Alabama state court, asserting claims of maritime negligence and wantonness. Harrington’s medical bills were paid by Skelton Fire’s compensation carrier, and the case against Exxon was tried to a jury. The trial judge ruled that evidence of the identity of the payor of the medical bills was prohibited by the collateral source rule, but the judge allowed the parties to offer evidence of the amount of medical expenses that were billed as well as the amount paid and accepted by the medical providers. The jury found that Exxon and Harrington were negligent (90% Exxon and 10% Harrington) and awarded compensatory damages of $1,500,000. The court entered judgment in favor of Harrington in the amount of $1,350,000. The issue presented in Exxon’s appeal to the Alabama Supreme Court involved the application of the collateral source rule. Exxon argued that the trial court should have allowed evidence of the source of the payment of Harrington’s medical bills in accordance with Alabama law. Writing for the Alabama Supreme Court, Justice Stewart noted that the treatment of collateral source payments differs under maritime law and Alabama law. Justice Stewart explained that the Higgs decision from the Eleventh Circuit concluded that a tortfeasor is entitled to recover the full value of damages caused by a tortfeasor without offset for amounts received from a third party. Thus, the collateral source rule bars admission of evidence of payments made by third parties. The Eleventh Circuit added that a write-off of medical expenses is not a collateral source payment and that the appropriate measure of past medical expense damages in a maritime tort case is “the amount determined to be reasonable by the jury upon its consideration of all relevant evidence, including the amount billed, the amount paid, and any other expert testimony and other relevant evidence the parties may offer,” which was the approach taken by the trial court in this case. In contrast, the Alabama Legislature effectively abrogated the collateral source rule in civil actions in Alabama when damages for medical expenses are claimed, allowing introduction of “evidence that the plaintiff’s medical or hospital expenses have been or will be paid or reimbursed.” Exxon argued that the Alabama statute was merely “a neutral rule of evidentiary procedure” and was “compatible with maritime law.” Justice Stewart disagreed, citing the Eleventh Circuit’s statement that the collateral source rule is both a substantive principle of damages and an evidentiary rule and the statement of an Alabama court that the Alabama statute modifies the substantive component of the collateral source rule. Justice Stewart reasoned that the trial court was required to apply substantive maritime law and with it the collateral-source rule. Thus, introduction of evidence of the payment of Harrington’s expenses pursuant to Alabama law “would have violated substantive maritime law, or, at least, would have encouraged the jury to violate that law.” Therefore, Justice Steward held that the trial court did not err in granting the motion to exclude the source of the payment of Harrington’s medical bills.
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
Quote
Alexis de Tocqueville once observed that “Americans make great and true sacrifices for public affairs. . . . I have observed a hundred times that they hardly ever fail to lend faithful support to each other as needed.” 2 Alexis de Tocqueville, Democracy in America 893 (Eduardo Nolla ed., James T. Schleifer trans., Liberty Fund 2012) (1835).
De Tocqueville’s description of American generosity and public spiritedness remains true to this day. The United States consistently ranks among the most charitable nations on earth. See, e.g., Charities Aid Found., CAF World Giving Index 5 (2019). In 2023, Americans donated over $550 billion to charity. Two-thirds of that amount was donated by individuals. (Citations omitted).
Judge James C. Ho in Virden v. City of Austin, Texas, No. 23-50697, 2025 U.S. App. LEXIS 3025 (5th Cir. Feb. 10, 2025).
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, February 28, 2025; redistribution permitted with proper attribution.
