May 2025 Longshore/Maritime Update
Notes from your Updater:
On February 24, 2025, Chief Judge Seeborg of the United States District Court for the Northern District of California remanded to state court the suit brought by the State of California against ExxonMobil Corporation (asserting that the defendant bears responsibility for the global plastic waste and pollution crisis due to its allegedly deceptive public messaging against plastic recycling). ExxonMobil removed the suit on numerous grounds, including the existence of admiralty jurisdiction, but Chief Judge Seeborg held that the alleged deception did not occur on navigable waters and that there was no substantial relationship between the conduct and traditional maritime activity. Chief Judge Seeborg declined to remand a similar suit by a group of nonprofit organizations because there was diversity jurisdiction in that case. See California ex rel. Bonta v. Exxon Mobil Corp., Nos. 3:24-cv-7594, 3:24-cv-7288, 2025 U.S. Dist. LEXIS 32948 (N.D. Cal. Feb. 24, 2025).
On March 7, 2025, Judge Moss of the United States District Court for the District of Columbia denied the challenge of Matson Navigation to the orders of the Maritime Administration, approving the applications of APL Maritime and APL Marine Services to replace vessels participating in the Maritime Security Program (under which participating vessels receive payments in return for a promise to make the participating vessel available to the United States in times of conflict or national emergency). See Matson Navigation Co. v. Department of Transportation, No. 21-cv-1606, 2025 U.S. Dist. LEXIS 42016 (D.D.C. Mar. 7, 2025).
On April 7, 2025, the Ninth Circuit agreed with Judge Wright of the United States District Court for the Central District of California that United National Insurance Co., which issued general liability policies to L.A. Terminals, owed a duty to defend L.A. Terminals (and provide independent counsel) in two environmental contamination lawsuits, reasoning: “The complaint’s use of the phrases ‘during L.A. T[erminals]’ multi-decades long tenancy,’ ‘[s]ince 1947,’ and ‘released and continued to be released,’ can be read to suggest that the releases occurred gradually over decades. But because “‘sudden’ refers to the pollutions commencement and does not require that the polluting event terminate quickly or have only a brief duration” under California law [citation omitted], LAT’s contribution to the alleged contamination could have been “sudden” within the meaning of the policies’ exception to the qualified pollution exclusion.” However, the Ninth Circuit held that Judge Wright erred in not providing United with a jury trial on the reasonableness of the defense costs that L.A. Terminals had incurred. See L.A. Terminals, Inc. v. United National Insurance Co., No. 23-55483, 2025 U.S. App. LEXIS 8062 (9th Cir. Apr. 7, 2025) (per curiam).
On April 14, 2025, the Eleventh Circuit reversed the summary judgment granted by Judge Bloom of the United States District Court for the Southern District of Florida in the suit brought under the Helms-Burton Act by the part-owner of property in and around Mariel Bay in Cuba that was confiscated after the Castro regime came to power in 1959 (where a container terminal was built through which Seaboard Marine shipped frozen chicken to Cuba). The court of appeals reasoned that Seaboard Marine trafficked in the land because it was used to unload goods and transport them into Cuba. See Fernandez v. Seaboard Marine Ltd., No. 22-12966, 2025 U.S. App. LEXIS 8801 (11th Cir. Apr. 14, 2025) (Brasher).
On the LHWCA Front . . .
From the federal appellate courts
Leonard Roberts was employed as a longshore worker in July 2020 on the PHILADELPHIA EXPRESS at the Garden City Terminal of the Georgia Ports Authority. Roberts alleged that before docking the vessel, the owner (Philadelphia Express Trust) and operator (Hapag-Lloyd) knew that a crewman on board the vessel had COVID-19; however, the vessel did not fly its quarantine flag before the longshore workers began boarding. Roberts contracted COVID-19 and brought this suit in state court in Chatham County, Georgia against the owner and operator of the vessel, alleging that he contracted the disease from his exposure on the vessel and bringing claims for negligence under Section 5(b) of the LHWCA and fraudulent concealment under Georgia law. The owner and operator removed the case to federal court in Georgia based on diversity, and Judge Baker dismissed the state claim but allowed Roberts to proceed with his claim under Section 5(b) for violation of the Scindia turnover duty. The vessel defendants then designated an expert (internal medicine and infectious disease doctor), Dr. Mitchell Adam Blass, who opined that Roberts did not contract COVID from his work on the PHILADELPHIA EXPRESS and that Roberts could have contracted COVID from myriad other sources, including contact with the girlfriend with whom he was living who contracted COVID before Roberts. Roberts moved to exclude Dr. Blass’s opinions, challenging his qualifications, his methodology, and the helpfulness of his opinions, and Magistrate Judge Ray addressed each of the objections. Magistrate Judge Ray noted that Blass is board certified in infectious diseases, was employed as Hospital Epidemiologist at Saint Joseph Hospital of Emory University, and had seen thousands of patients with COVID. Magistrate Judge Ray concluded that Dr. Blass’s opinions were within the “reasonable confines” of his experience and that any difficulties of contact tracing went to the weight, not admissibility, of his testimony. With respect to methodology, Roberts argued that Dr. Blass did not have detailed knowledge of the ship’s layout, that Dr. Blass did not review the medical records of the crew member who had COVID or of Roberts’ girlfriend so that he did not know what their symptoms were or when they started exhibiting symptoms, and that he did not know the living arrangements with Roberts’ girlfriend. Magistrate Judge Ray did not believe that the methodology was insufficient with respect to the opinion that Roberts did not contract COVID from his work on the vessel as Dr. Blass relied on deposition testimony on the movements of the crewmember and the negative testing of every other member of the crew at the next port (using his extensive experience as an infectious disease expert). Magistrate Judge Ray did not believe that Dr. Blass’s opinion about other sources for the contraction of COVID was sufficient because that opinion did not explain how Blass identified other possible sources of Roberts’ COVID infection and did not explain why his experience was a basis for that conclusion. Finally, Magistrate Judge Ray considered the opinion about the source of the COVID infection to be beyond the understanding of the average lay person and that it would be helpful to the jury. See November 2023 Update.
The defendants moved for summary judgment, arguing that even if they violated the turnover duty, there was no evidence that the violation caused Roberts’ injury. Roberts did not provide any expert testimony in support of causation, and his own testimony about his contacts with crewmembers (his only encounters closer than ten to twenty feet occurred outside and lasted twenty seconds at the most), were insufficient. Alternatively, Roberts argued that the vessel was turned over in an unsafe condition that forced the union to halt work and to require the longshore workers to present a negative COVID-19 test before returning to work. Roberts reasoned that he would not have missed work because his symptoms likely would not have prompted him to take a COVID test. Judge Baker answered that causing a third party (union) to require a test that prevented him from going to work while infected was too attenuated to support imposing liability on the ship. Therefore, Judge Baker dismissed the suit, and Roberts appealed to the Eleventh Circuit. Roberts argued that he did not have to submit expert medical testimony to establish causation, and the Eleventh Circuit noted that the court had not extended the requirement of medical testimony to cases brought under LHWCA Section 5(b). The appellate court did not have to reach the issue, however, because Robert’s factual allegations failed to create a fact dispute on causation. The court stated: “Roberts would require a factfinder to presume that because he tested positive after boarding the vessel, someone on the vessel gave him the virus.” As the only basis for causal connection was speculation, the Eleventh Circuit affirmed the summary judgment.
From the federal district courts
Judge declined to dismiss claim of wife of longshore worker injured on vessel for loss of society in suit against dock owner; Kirk v. Superior Marine Ways, Inc., No. 3:23-cv-728, 2025 U.S. Dist. LEXIS 33678 (S.D. W. Va. Feb. 25, 2025) (Chambers).
Bart Kirk worked as a supervisor for Kanawha River Terminals in Ceredo, Wayne County, West Virginia. Kanawha River Terminals employs harbor workers to work on its coal dock. Kanawha River Terminals contracted with Superior Marine Ways to utilize its barge, excavator, and employees to unload barges at its coal dock. On the day of his accident, Kirk asserts that Superior Marine Ways was unloading a barge and dropped large amounts of coal onto the deck of a barge owned by Kanawha River. Kirk walked out of his office to stop the dumping and stepped onto a manhole cover that was covered in coal, resulting in the manhole cover flipping into his groin area. Kirk and his wife brought this action in state court in Wayne County, West Virginia against Superior Marine pursuant to Section 33 of the LHWCA, including a claim for loss of society. Superior Marine removed the case to federal court in West Virginia based on federal question jurisdiction from the LHWCA and diversity jurisdiction and moved for summary judgment, arguing that non-pecuniary damages (loss of society) are not available under the general maritime law. Judge Chambers began his analysis with a discussion of the decisions of the Supreme Court from Gaudet to Batterton. Superior Marine argued that the court should read Batterton broadly and apply it to maritime negligence actions brought by longshore workers so as to create uniformity with the recovery allowed for seamen. In light of the explicit recognition of recovery for loss of society by the Supreme Court in Gaudet and Alvez, however, Judge Chambers declined to extend the reasoning of Batterton to Mrs. Kirk’s claim for loss of society, and he denied Superior Marine’s motion.
LHWCA carrier was denied leave to intervene in suit by deceased workers against third parties as the interests of the LHWCA carrier were adequately represented by the plaintiffs; Scarborough v. Rotocraft Leasing Co., Nos. 4:23-cv-1519, 4:23-cv-2851, 4:23-cv-4183, 2025 U.S. Dist. LEXIS 45559 (S.D. Tex. Mar. 12, 2025) (Palermo).
This litigation arises out of the crash of a Bell 407 helicopter, owned and operated by Rotocraft Leasing Co., onto a platform located on the outer Continental Shelf of the Gulf of America, causing the death of David Scarborough, Robert Bankston, and Timothy Graham (employees of Island Operating Co.). Beneficiaries of the deceased workers brought suits against Rotocraft and platform owner Walter Oil & Gas in federal court in Texas, and the Louisiana Workers’ Compensation Corp. filed an unopposed motion to intervene in the suit to recover the benefits it paid under the LHWCA to the beneficiaries and to assert a credit for future LHWCA benefits. Magistrate Judge Palermo reviewed the factors to determine whether LWCC was entitled to intervene as of right, and she agreed that the intervention was timely and that LWCC had an interest in the subject matter of the litigation. However, Magistrate Judge Palermo held that the interests of LWCC were adequately protected by the plaintiffs. She added that if, at some later date, the interests of the plaintiffs and intervenor diverged, the intervenor could seek to intervene at that time, even after the conclusion of a jury trial and verdict. For the same reason, Magistrate Judge Palermo denied LWCC’s claim for permissive intervention. Therefore, she denied the motion for leave without prejudice.
And on the maritime front . . .
From the United States Supreme Court
The Supreme Court declined to grant a petition for certiorari to review the decision of the Seventh Circuit that DOHSA provided the remedy for beneficiaries of passengers who died in Lion Air Flight JT 610 in the Java Sea, and the beneficiaries were not entitled to a jury trial in federal court; Smith v. The Boeing Co., No. 24-849, 2025 U.S. LEXIS 1393 (U.S. Apr. 7, 2025), denying cert. to In re Lion Air Flight JT 610 Crash Appeal of Laura Smith, Nos. 23-2358, 23-2359, 2024 U.S. App. LEXIS 19641 (7th Cir. Aug. 6, 2024) (Ripple).
This litigation arises from the crash of the Boeing 737 MAX (Lion Air Flight JT 610) in the Java Sea after taking off from Jakarta, Indonesia, resulting in the deaths of everyone on board. Numerous actions were filed against Boeing, and Boeing settled with the families of all but two of the decedents, Liu Chandra, an Indonesian businessman, and Andrea Manfredi, an Italian professional cyclist and entrepreneur. The Chandra plaintiffs filed suit in Illinois state court, alleging wrongful death under the Death on the High Seas Act and the Illinois Wrongful Death Act, and they included survival claims. Boeing removed the case to federal court based on the Multiparty, Multiforum, Trial Jurisdiction Act and based on the federal court’s admiralty jurisdiction. In an amended complaint after removal, the Chandra plaintiffs demanded a jury and based jurisdiction on diversity, DOHSA, and the MMTJA. The Manfredi plaintiffs filed suit in federal court in Illinois, invoking diversity and asserting claims for wrongful death, survival, and violations of the Illinois Consumer Fraud and Deceptive Practices Act and the federal Computer Fraud and Abuse Act. They demanded a jury trial and sought punitive damages. Boeing filed motions in both cases seeking a determination that DOHSA applies, that it preempts the non-DOHSA claims, and that it requires a non-jury trial. Recognizing the cases holding that DOHSA applies to deaths on or over the high seas, the Manfredi plaintiffs argued that over half of the flight occurred over land. They contended that the court should consider the location where the negligence was consummated into a “first” injury, and that Manfredi was first injured during the period where the flight was over land (suffering, at a minimum, emotional distress). However, the Manfredi plaintiffs lacked authority for the theory, and Judge Durkin cited the Fifth Circuit’s Motts case that held that the proper test looked to the location of the accident for the application of DOHSA. As the situs of pre-death (but non-fatal) injury did not matter for DOHSA, and as there were no factual disputes in this case about whether the death occurred over the land or water (as the complaint alleged that Manfredi’s death occurred when the plane crashed into the ocean), Judge Durkin held that DOHSA applied. Judge Durkin then addressed whether DOHSA’s application preempted other remedies that were sought and whether the plaintiffs were entitled to a jury trial. Based on the decisions of the Supreme Court in Tallentire and Dooley, Judge Durkin began with the principle that, where DOHSA applies, it is generally the exclusive source of applicable law and preempts state wrongful death claims as well as survival claims. Although the plaintiffs argued that some of the injuries occurred while the plane was over land, citing cases involving asbestos exposure that occurred in employment on land and over the water, Judge Durkin distinguished those cases as indivisible injury cases where the fatal injury occurred over many years and partially over land. Judge Durkin also held that DOHSA preempted claims for property damage and claims under the state and federal statutes (claims under a federal statute would be displaced rather than preempted). The final question was whether the saving-to-suitors clause and diversity preserved a right to a jury trial for the DOHSA claims. Although the plaintiffs could bring maritime claims in diversity and obtain a jury trial, Judge Durkin noted that DOHSA is limited to “a civil action in admiralty,” and that does not carry the right to a jury trial. The Supreme Court explained in Tallentire that DOHSA’s saving clause allows state courts to hear suits under DOHSA, but it does not allow state causes of action to be brought in DOHSA cases or allow the plaintiffs to invoke common-law jurisdiction. The Chandra case was brought in state court where the plaintiffs would have had a jury trial, but when it was removed, federal procedural law controlled the right to a jury trial, and Judge Durkin held that there was no right to a jury trial in federal court in an admiralty claim. Diversity provided an additional basis for federal jurisdiction, but it did not enlarge the substantive remedy on which the claim was based—DOHSA. See February 2023 Update.
On May 25, 2023, Judge Durkin issued an amended opinion and order in which he reiterated the holdings, dismissing the claims for pre-death pain and suffering, emotional distress, property damage, and state and federal fraud claims. He held that both cases would be tried exclusively under DOHSA, which mandated that the cases be tried to the court’s admiralty jurisdiction in a bench trial. He did, however, certify for an interlocutory appeal the single issue of the plaintiffs’ entitlement to a jury trial, and the Seventh Circuit accepted the appeal. See June and August 2023 Updates.
Writing for the Seventh Circuit, Judge Ripple noted that the plaintiffs asked the court to certify two questions, whether DOHSA preempted non-DOHSA claims and whether the plaintiffs were entitled to a jury trial under DOHSA. Although Judge Durkin only certified the jury-trial issue, Judge Ripple held that the Seventh Circuit would consider both issues, explaining that resolution of the preemption issue would influence the decision on the jury-trial question. Turning to the plaintiffs’ claims under state law, Judge Ripple noted that the plaintiffs conceded that DOHSA preempted their wrongful death claims. However, they argued that their survival claims were not fully preempted, so that they could recover for the decedents’ pain and suffering. The plaintiffs were confronted with the decision of the Supreme Court in Dooley, that rejected survival claims brought under the general maritime law for deaths on the high seas, concluding that “there can be no general maritime survival action for such damages.” The plaintiffs sought to avoid the holding in Dooley by asserting state-law claims for pain and suffering experienced on the overland portion of the flight and for the property the decedents lost in the crash. Judge Ripple disagreed, answering that the plaintiffs could not avoid the preemption of DOHSA, citing the Supreme Court’s analysis that DOHSA would preclude all other causes with respect to deaths on the high seas and the decision of the Eleventh Circuit that an accident was governed by DOHSA for a crash on the high seas even though the alleged negligence and much of the flight was going to be over land. Judge Ripple then addressed the issue of whether the plaintiffs were entitled to a jury trial on their DOHSA claims. He cited the saving-to-suitors clause that allows maritime plaintiffs with in personam claims to bring suit in state court. He added that the 1966 merger of the law, equity, and admiralty spheres of federal courts did not materially change the options of a maritime plaintiff, who could sue in state court and obtain a jury trial or bring a suit in federal court in admiralty without a jury. The plaintiffs argued that they were entitled to bring their claims in state court as common-law claims with a jury, but the defendants argued that DOHSA provides that a plaintiff “may bring a civil action in admiralty.” Judge Ripple reasoned that the “natural, ordinary reading” of the statute supported the defendants’ argument that no jury was available in a DOHSA claim. He noted that other courts have held that cases involving only DOHSA claims brought in federal court must proceed without a jury. The plaintiffs cited the Supreme Court’s decision in Romero for the “historic option of a maritime suitor” to pursue a common-law remedy and select the forum. However, he did not believe that allowing a jury trial was consistent with the language of DOHSA. Judge Ripple recognized “the potential anomaly in allowing defendants to effectively extinguish a plaintiff’s jury trial right by removing a case to federal court,” adding that DOHSA claims are typically tried by juries when they are in state court. However, as the cases were now pending in federal court, no jury trial was available (Judge Ripple did note that the court did not have to address the issue whether the saving-to-suitors clause might serve as an objection to removal, citing the Lu Junhong decision in which removal of a maritime case was upheld when an objection was not timely raised, but the court stated: “Perhaps it would be possible to argue that the saving-to-suitors cause itself forbids removal, without regard to any language in § 1441.”). See September 2024 Update.
The Manfredi beneficiaries then sought a writ of certiorari from the Supreme Court, presenting this question to the Court:
This wrongful-death case, arising out of the tragic Boeing 737 MAX crash into the Java Sea, raises a fundamental question of admiralty jurisdiction.
The estate and family of Andrea Manfredi, who died in the crash, brought in personam wrongful-death claims against Boeing and others under the Death on the High Seas Act (DOHSA), 46 U.S.C. §§ 30301–30308. These claims can be heard in admiralty, but they also satisfy the requirements for diversity and multiparty, multiforum jurisdiction. “If a claim for relief is within the admiralty or maritime jurisdiction and also within the court’s subject-matter jurisdiction on some other ground, the pleading may”—but need not—“designate the claim as an admiralty or maritime claim.” Fed. R. Civ. P. 9(h). The Manfredis did not so designate their claims.
The Seventh Circuit nevertheless held that these DOHSA claims are subject to exclusive admiralty jurisdiction in federal court, meaning no jury-trial right applies. The court so held despite recognizing that the same claims could be heard in state court, where they “are typically tried by juries.” The question presented is:
Whether a federal court can have exclusive admiralty jurisdiction over a claim when a non-admiralty state court would have concurrent jurisdiction over the same claim.
The petition was supported by amicus curiae briefs filed by a number of distinguished law professors (Martin Davies, Robert Force, Steven F. Friedell, Thomas C. Galligan, Jr., and Thomas J. Schoenbaum), former judges (Paul G. Cassell and Nancy Gertner), and the American Association for Justice. On April 7, 2025, the Supreme Court declined to hear the case.
United States Supreme Court declined to consider decision that ship, not harbor tugs, was responsible for damage to mooring dolphins during undocking in the Houston Ship Channel and that the presumption of liability from a failure of machinery was not applicable as the failure occurred after the allision; Aframax River Marine Co. v. Suderman & Young Towing Co., No. 24-1004, 2025 U.S. LEXIS 1532 (U.S. Apr. 21, 2025), denying cert. to Intercontinental Terminals Corp. v. Aframax River Marine Co., No. 23-20544, 2024 U.S. App. LEXIS 27884 (Nov. 4, 2024) (per curiam).
The tanker AFRAMAX received a cargo of crude oil at the Houston Fuel Oil tank facility on the north side of the Houston Ship Channel and engaged two harbor tugs, the GASPARILLA and JESS NEWTON, to assist in the departure. During the departure, the AFRAMAX suffered a malfunctioning runaway engine that was stuck in the astern direction and the vessel struck mooring dolphins at the terminal on the opposite side of the Channel. Moments before the allision, the JESS NEWTON quit pulling on the AFRAMAX because a piling was “right between the ship and me.” The terminal operator brought suit against the interests of the AFRAMAX in federal court in Houston, and the AFRAMAX interests brought third-party claims against the operators of the harbor tugs. Judge Hanks held a bench trial in February 2023 and found that the AFRAMAX was 100% responsible for the allision and that the tugs were not responsible. See November 2023 Update.
The AFRAMAX interests appealed, arguing that Judge Hanks erred in not applying the presumption of liability from a failure of machinery or gear enunciated by the Second Circuit in Cranberry Creek Coal Co. v. Red Star Towing & Transportation Co., citing the mechanical failure of the JESS NEWTON’s winch. Without deciding whether the presumption is applicable in the Fifth Circuit, the court noted that Judge Hanks had found that the winch failure occurred after the allision. Thus, there was no reason to invoke the presumption, and the Fifth Circuit declined to disturb the judgment in favor of the tugs. See December 2024 Update.
Aframax filed a petition for certiorari with the United States Supreme Court, presenting this question:
Under federal admiralty law, whether a court adjudicating and apportioning the fault/liability of the respective parties in a vessel collision/allision case must consider their respective self-investigation records and casualty reports that are a required part of their Safety Management System, mandated by the International Safety Management Code and adopted and implemented by Act of Congress?
On April 21, 2025, the Supreme Court declined to hear the case.
From the UK Supreme Court
Charterer of the FLAMINIA was allowed to pursue limitation of liability in the UK, but limitation did not extend to claims of the owner related to damage to the vessel and only extended to the costs of discharging sound and damaged cargo and for decontaminating the cargo; MSC Mediterranean Shipping Co., v. Conti 11 Container Schiffahrts-GMbH & Co., No. UKSC/2023/0131, [2025] UKSC 14 (UK Sup. Ct. Apr. 9. 2025) (Hamblen).
Conti, owner of the M/V MSC FLAMINIA, chartered the vessel to Mediterranean Shipping Co., and the vessel carried cargoes for MSC for 12 years, calling at ports around the world, including the Port of New Orleans. In 2012, the vessel called in New Orleans to load three tanks of 80% divinylbenzene. The tanks of cargo exploded thirteen days later while the vessel was transiting the Atlantic Ocean, resulting in the deaths of three members of the crew, damage to cargo on the vessel, and damage to the vessel. The charter party contained a London arbitration clause, and Conti pursued its claims against MSC in a London arbitration that resulted in an award of approximately $200 million. There was also litigation in New York, including Conti’s limitation of liability action. Conti filed a suit in federal court in New Orleans to confirm the arbitration award under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention), and MSC moved to dismiss the action for lack of personal jurisdiction. MSC argued that the underlying litigation was no longer relevant to the question whether the award was enforceable, but Conti argued that the issue was whether it was the beneficiary of an award resulting from the defendant’s forum activities in connection with the claim. After a thorough analysis of the language of the statute implementing the Convention, Judge Barbier concluded that in actions to compel arbitration or confirm arbitration, the court may “look through” the application to the underlying substantive controversy between the parties to determine whether it has personal jurisdiction. As the cargo that exploded was loaded and shipped in New Orleans, Judge Barbier held that Conti’s cause of action related to MSC’s contacts in Louisiana, and that there was personal jurisdiction over MSC to confirm the award. MSC also issued a letter of undertaking in which its insurer agreed to pay Conti any judgment up to $220 million issued by the Eastern District of Louisiana in exchange for Conti’s agreement not to arrest or attach MSC’s vessels or bring any proceeding for the enforcement of the arbitration award in any jurisdiction outside of the English jurisdiction other than the Eastern District of Louisiana. Concluding that the letter of undertaking demonstrated that MSC had consented to the jurisdiction of the Eastern District of Louisiana, Judge Barbier held that MSC had waived any personal jurisdictional defense it may have had to the federal court in Louisiana. See October 2022 Update. Judge Barbier confirmed the arbitration award in favor of Conti and against MSC on November 23, 2022, and MSC filed a notice of appeal to the Fifth Circuit on December 22, 2022.
In the litigation brought in New York, Judge Forrest agreed to decide the issues in phases. The first phase determined the causes of the explosion. The second phase addressed liability for cargo loss and damage (the injury and death actions had been settled). The cargo (divinylbenzene or DVB-80) was manufactured by Deltech in its plant in Baton Rouge, Louisiana. The transportation was arranged through Deltech’s regular non-vessel operating common carrier, Stolt. Stolt provided three large shipping tanks (ISO containers) for the cargo and procured shipment on the FLAMINIA, owned by Conti and chartered by MSC. In the Phase I trial, Judge Forrest found that a spark ignited a cloud of vapor rising from the three tanks of DVB-80 that were stored in the hold of the vessel, and that the spark was generated by the efforts of the crew to fight what they perceived to be a fire in the hold. The cloud of vapor was the result of the DVB-80 undergoing a chemical process called auto-polymerization and reaching a thermal runaway. In Phase II, Judge Forrest found Deltech 55% at fault and Stolt 45% at fault, based on strict liability and failure to warn under the Carriage of Goods by Sea Act, and she found that Conti, MSC, and New Orleans Terminal were not liable. In particular, Judge Forrest found greater responsibility on Deltech for authorizing shipment of the DVB-80 from New Orleans in late June (increasing the chance of auto-polymerization) and for filling the ISO containers earlier than necessary for the expected embarkation date, leaving the containers sitting stagnant in the hot New Orleans sun. Judge Forrest found Stolt liable because it possessed extensive information on the heat-sensitive nature of the DVB-80 but failed to share that information with the charterer, MSC, and for its responsibility in the early loading and early transport of the chemical to New Orleans Terminal. Judge Forrest found strict liability against Deltech and Stolt pursuant to Section 4(6) of COGSA, which provides that a shipper of inflammable, explosive, or dangerous goods “shall be liable for all damages and expenses directly or indirectly arising out of or resulting from such shipment” when the carrier does not have knowledge of the “nature and character” of the goods. Judge Forrest imposed strict liability, finding that MSC could not have known that the DVB-80 had been exposed to the specific dangerous conditions that resulted in the explosion. Writing for majority of the Second Circuit, Judge Carney held that the notice threshold for the carrier is “relatively modest” and that notice of “the general dangerousness” of the cargo it agreed to carry can cause the strict liability theory to be unavailable. The evidence established that MSC had experience carrying DVB-80 and had received transport documents warning of the chemical’s heat sensitivity. Judge Carney held that this general knowledge surpassed the low threshold to preclude recovery for strict liability. The appellate court reached a different conclusion with respect to the claim of failure to warn based on Section 4(3) of COGSA that the shipper shall not be responsible for loss or damage sustained by the carrier or the ship arising or resulting from “any cause without the act, fault, or neglect of the shipper, his agents, or his servants.” Judge Carney explained that a shipper’s failure to adequately inform the carrier of the foreseeable dangers posed by cargo can constitute fault or negligence and give rise to a claim of negligent failure to warn. In this case, the general knowledge and experience of MSC did not save Deltech and Stolt: “But to require MSC to ‘associate the chemical properties it may know somewhere within its organization with a shipment of three discrete tanks’ would unreasonably allocate risk and burden among the parties—particularly when critical characteristics of those specific tanks were out of the ordinary.” Judge Carney added that the Master Bill of Lading Instructions (calling for above-deck temperature monitoring because of heat sensitivity) was insufficient to place MSC on reasonable notice of the dangerousness of the cargo. Turning to the issue of the finding that MSC was not at fault, Judge Carney cited the carrier’s duty under COGSA to “properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried.” She concluded that, absent a booking request for on-deck stowage and temperature monitoring, the stowage of the tanks below deck was reasonable and foreseeable to Stolt and Deltech. She also affirmed the findings that the crewmembers were not negligent and that New Orleans Terminal was not at fault (no special handling instructions for the cargo were provided to the terminal, and it handled the cargo in accordance with its published practices). Finally, pursuant to the terms of the Sea Waybills, Stolt and Deltech were required to indemnify MSC and Conti for their losses arising from dangerous or hazardous goods. Therefore, Judge Carney agreed with the district court that Stolt and Deltech were required to indemnify MSC and Conti. Judge Menashi dissented from the rulings that MSC was not negligent and that MSC was entitled to full indemnity from Deltech and Stolt. See August 2023 Update.
Meanwhile, MSC sought to limit its liability in litigation in London, pursuant to the 1976 Convention on Limitation of Liability for Maritime Claims. The admiralty judge, Andrew Baker, held that MSC was not entitled to limit its liability to Conti because Conti’s claims were not within the scope of the Convention. Speaking for the Court of Appeal, Lord Justice Males agreed that MSC was not entitled to limit its liability, and the appeal was dismissed. MSC Mediterranean Shipping Co. v. Stolt Tank Containers B.V., No. CA-2022-002293, [2023] EWCA Civ 1007 (Sept. 1, 2023). See October 2023 Update.
While the litigation was playing out in New York and London, MSC appealed to the Fifth Circuit from the confirmation of the arbitration award in favor of Conti by Judge Barbier in the United States District Court for the Eastern District of Louisiana. MSC argued that the federal court in Louisiana lacked personal jurisdiction over MSC. The Fifth Circuit agreed with Judge Barbier that, in deciding whether the court has personal jurisdiction to confirm an award under the New York Convention, the court should consider contacts related to the underlying dispute and not just contacts related to the arbitration. Writing for the Fifth Circuit, Judge Duncan disagreed that Judge Barbier should have confined his evaluation of jurisdiction to contacts related to MSC’s refusal to pay the arbitral award, stating that the “argument has been rejected by every circuit to have considered it.” Although MSC argued that the circuit decisions had been overridden by the recent decision of the Supreme Court in Badgerow, Judge Duncan distinguished that case because it involved subject matter jurisdiction, not personal jurisdiction. Judge Duncan then turned to MSC’s appeal of the decision of Judge Barbier that MSC waived its personal jurisdiction defense by its insurer’s issuance of the letter of undertaking. Unlike letters of undertaking in which the underwriters agree to appear in the suit and pay any final judgment (which waives objections to personal jurisdiction), the letter in this case was given without prejudice to any and all rights or defenses MSC may have in the proceeding. As MSC asserted a defense of lack of personal jurisdiction, Judge Duncan stated: “That should end the waiver inquiry.” Finally, MSC argued that, if it was proper to consider contacts with Louisiana beyond the arbitration dispute, Judge Barbier erred in finding personal jurisdiction based on the fact that the chemical was loaded in tanks and shipped from New Orleans. Judge Duncan noted that the contact with New Orleans was by MSC USA (and third parties) and not its parent, MSC. Conti did not show that MSC and MSC USA are not distinct corporate entities or that MSC exercised complete authority over MSC USA’s operations. The only contact involving MSC was in Antwerp, Belgium, where MSC approved the booking. As the contacts with Louisiana did not arise from MSC’s own deliberate activities and instead arose from the contacts of others that were not attributable to MSC, the Fifth Circuit reversed the confirmation award and remanded the case with instructions to dismiss the suit for lack of personal jurisdiction. On February 26, 2024, the panel denied Conti’s petition for rehearing. See March 2024 Update.
MSC appealed to the UK Supreme Court from the denial of its request for limitation of liability in the London proceeding. MSC agreed that English law does not permit limitation for claims of the shipowner for damage to the vessel. However, MSC argued that it was entitled to limit liability for claims of the shipowner that result from damage to the vessel (berth dues, quayside space rental and service charges, cargo handling and disposal costs, customs agents’ fees, bunker supplies, fire experts’ fees, disposal of firefighting water, and other miscellaneous expenses). Speaking for the Supreme Court, Lord Hamblen disagreed with the Court of Appeal, holding that a charterer can limit its liability for claims by the vessel owner. However, considering the claims submitted by Conti in the limitation proceeding, Lord Hamblen agreed with the appellate court that none of the costs were subject to limitation except for the costs of discharging sound and damaged cargo and for decontaminating the cargo.
From the federal district courts
Claimant to vessel in in rem suit involving cargo damage could file crossclaims against stevedore defendants without waiving its right to assert that it was not subject to in personam jurisdiction; all-risk cargo policy did not cover demurrage costs incurred subsequent to cargo damage based on the exclusion for expenses arising from delay, and the sue-and-labor clause did not help because the demurrage expenses were not a covered loss; Royal White Cement, Inc. v. M/V WECO HOLLI, No. 23-cv-788, 2025 U.S. Dist. LEXIS 30991 (E.D. La. Feb. 21, 2025) (Long); Liberty Mutual Insurance Co. v. Royal White Cement, Inc., No. 23-cv-3258, 2025 U.S. Dist. LEXIS 32081 (E.D. La. Feb. 24, 2025) (Long).
Royal White Cement chartered the M/V WECO HOLLI from charterer/operator Pegasus Denizcilik to transport 14,009 bags of cement from Port Said, Egypt to Houston, Texas, with a stop in New Orleans, Louisiana to discharge 30,119 bags of cement. The bill of lading issued in conjunction with the Houston shipment incorporated the terms of the charter party, including its arbitration clause. Royal White claims that the stevedoring companies in New Orleans unloaded the bags without regard to whether the cement was supposed to be discharged in New Orleans or Houston, resulting in the Houston cargo not being properly supported so that the cargo shifted and collapsed during the voyage from New Orleans to Houston. Royal White then brought this suit in federal court in New Orleans against Pegasus, the vessel, and the stevedoring companies. Pegasus and the owner of the vessel, Ocean Green, moved to compel arbitration under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) based on the London arbitration clause in the charter party. The charter party provided that any dispute arising out of the charter “shall be referred to arbitration in London.” As Royal White Cement brought a claim for breach of contract against Pegasus, that claim was subject to the arbitration clause. Ocean Green also argued that the in rem claim against the vessel was subject to the arbitration clause, and Judge Long agreed, reasoning that the vessel was bound by the bill of lading, ratifying its terms when it set sail from Egypt with the cargo onboard. The bill of lading incorporated the charter, and the charter’s arbitration clause was broad enough to cover the in rem claim as the claim was for damage to cargo being transported on the vessel in accordance with the charter. Therefore, Judge Long stayed the lawsuit with respect to the claims against Pegasus and the vessel, but he declined to stay the claims against the remaining defendants. See May 2024 Update.
Ocean Green, which answered the complaint on behalf of the vessel, brought crossclaims against the stevedores for contribution and indemnity, noting its restricted appearance and asserting a personal jurisdiction defense (pleading that it did not elect to sail to Louisiana and did not engage the stevedores or manage the stevedoring operations). The stevedores responded with crossclaims and a counterclaim for contribution and indemnity against Ocean Green, and Ocean Green objected to personal jurisdiction and moved to dismiss the counterclaim and crossclaims. The stevedores argued that Ocean Green had submitted to the court’s jurisdiction by asserting crossclaims, but Judge Long disagreed, reasoning that the Fifth Circuit has long held that a non-resident defendant like Ocean Green “may participate in litigation without submitting to the court’s jurisdiction so long as it maintains its objection to personal jurisdiction.” Judge Long added that the filing of the crossclaims did not submit Ocean Green to the jurisdiction of the court because its continuing assertion of its jurisdiction defense reflected that it did not waive the jurisdiction defense. Judge Long noted that there is an exception when the defendant asserts new claims against new parties that do not arise out of the same occurrence as the original action. However, the exception was not applicable because Ocean Green’s crossclaims arose out of the same occurrence as the original action. Accordingly, Judge Long dismissed the stevedores’ counterclaim and crossclaims for lack of personal jurisdiction.
A separate suit in federal court in Louisiana involved coverage under the marine cargo insurance policy issued by Liberty Mutual to Royal White that was endorsed to carry the shipment of bags of cement. Royal White asserted a claim for demurrage that Royal White incurred because of delays traceable to the spilling of the cargo. Liberty Mutual paid $850,000 for other damages under the policy, but it declined to pay for the demurrage, and it brought this declaratory judgment suit against Royal White. The parties filed cross motions for summary judgment, and Royal White argued that the policy was an all-risk policy covering all losses from a fortuitous peril that are not specifically excluded. Royal White added that the loss was covered by the sue-and-labor clause in the policy (reimbursing the assured for expenditures made for the benefit of the underwriter to reduce or eliminate a covered loss). Judge Long assumed that Royal White had established a prima facie case and that the burden shifted to Liberty Mutual to establish an exclusion to coverage. He then considered the policy exclusion for expenses arising from delay, “whether caused by a peril insured against or otherwise.” Applying New York law in accordance with the policy’s choice-of-law provision, Judge Long reasoned: “The demurrage assessed against Royal White is an ‘expense’ that ‘aris[es] from’ delay and so is excluded from coverage. Royal White was assessed demurrage because the vessel was held at the dock—i.e., delayed—in Houston while Royal White cleaned up the cement that had spilled inside the vessel. Royal White acknowledges that the ‘delay cleaning up the mess in Houston caused Royal White[] to be charged for demurrage’ under the charter party. That demurrage necessarily ‘originate[es] from, [is]incident to, or ha[s] connection with’ delay . . . because ‘[d]emurrage is a type of charge for delays.’” Judge Long also rejected the argument that the expense was covered under the sue-and-labor clause as the clause is not triggered unless the loss is one for which the insurer would be liable. Thus, “if the policy does not cover the loss, there is no duty to reimburse the insured for sue-and-labor expenses linked to that loss.” Therefore, Judge Long held that the policy did not cover the demurrage charges.
Complaint was insufficient for the judge to issue a warrant for arrest of the vessel; Trident Seafoods Corp. v. MISS BRENDA, No. 3:25-cv-5145, 2025 U.S. Dist. LEXIS 31505 (W.D. Wash. Feb. 21, 2025) (Cartwright).
Trident Seafoods brought this in rem action against the MISS BRENDA in federal court in Washington, seeking to recover on a preferred ship mortgage on the vessel. Trident moved for an order authorizing issuance of a warrant for arrest of the vessel, but Judge Cartwright declined to order the arrest. First, Judge Cartwright noted that the complaint failed to describe the vessel with “reasonable particularity,” as it merely gave the name and Official Number for the vessel. Second, the complaint insufficiently stated where the vessel was located, only stating that it was located in the waters of the district. Finally, it was unclear if the complaint had been properly verified by the signature of “a Director of Sales Development and formerly Fleet Experience Manager for Trident Seafood Corporation.” Judge Cartwright advised that the complaint did not state that the verification was by an officer of Trident, and his title did not make clear to the court that he is. Judge Cartwright denied the motion without prejudice.
Passenger’s negligence pleading improperly combined negligent design and negligent maintenance and conflated theories of direct negligence and vicarious liability; passenger’s failure to warn pleading that included allegations of both direct and vicarious liability had to be repleaded to establish the appropriate notice; Miles v. Carnival Corp., No. 24-cv-22767, 2025 U.S. Dist. LEXIS 32323 (S.D. Fla. Feb. 21, 2025) (Bloom).
Angela Miles, a passenger on the CARNIVAL GLORY, was injured while reboarding the vessel at the port of COZUMEL. She claims that she placed her foot on the gangway, which caused the gangway to raise up and trap her other foot under the ramp, resulting in her fall. She brought suit against the cruise line in federal court in Florida, asserting counts for negligence and failure to warn. The negligence count alleged several theories of liability under a single count, and Judge Bloom agreed that it was improperly pleaded, reasoning that it included allegations of negligent design and negligent maintenance that are “distinct negligence claims and cannot be nestled within a general negligence claim.” The count was also defective because it conflated direct negligence and vicarious liability theories. Judge Bloom explained that the passenger is allowed to bring both theories in a single pleading, but each claim must be pleaded separately. Turning to the count alleging failure to warn, Miles asserted that the cruise line owed a duty to warn of dangers known to the cruise line where the cruise line invites or reasonably should expect passengers to go, including pedestrian walkways. Miles added that the duty arose because a reasonable person who was not familiar with embarking/disembarking from gangways would not appreciate the danger of the gangway shifting. Judge Bloom explained that, in the negligence count, the pleading confused direct liability (requiring notice to the cruise line) and vicarious liability. The allegation about the dangerous condition sounded in direct liability, but the pleading alleged that the cruise line failed to properly operate the gangway, which sounded in vicarious liability for the discrete negligence of a crewmember. The pleading also raised a claim of negligence per se for failing to comply with international regulations and industry safety standards, but the allegations were too conclusory to establish notice. Accordingly, Judge Bloom dismissed the complaint with leave to file an amended complaint.
Vessel owner failed to state contract claims against claims-handling third party in connection with failure of insurers to pay for fire loss on vessel; Good Mariner, LLC v. Accelerant Specialty Insurance Co., No. 24-cv-152, 2025 U.S. Dist. LEXIS 32310 (D.R.I. Feb. 24, 2025) (Smith).
Good Mariner insured its vessel S/Y FLOW with Accelerant Specialty Insurance and Certain Underwriters at Lloyd’s. A fire on the vessel resulted in the vessel being a constructive total loss. The insurers declined to pay for the loss, and Good Mariner brought this suit in federal court in Rhode Island against Accelerant Specialty, Lloyd’s, and the third-party administrator contracted by the insurers to provide claims-handling services, Sedgwick Claims Management Services. Sedgwick Claims moved to dismiss the contract-based claims asserted against it by Good Mariner, arguing that no contract existed between Good Mariner and Sedgwick Claims. Applying New York law (as Sedgwick Claims did not believe there was a conflict between New York and Rhode Island law), Judge Smith rejected the argument that the parties were in privity of contract because Sedwick Claims was the third-party administrator responsible for the claims handling services, reasoning that the agent is not bound when there is a disclosed principal-agent relationship. Therefore, Sedgwick Claims could not be liable for breach of the covenant of good faith and fair dealing with respect to the policy. Good Mariner also argued that Sedgwick Claims was liable for breaching the separate Handling Contract between the insurers and Sedgwick Claims, claiming status as a third-party beneficiary. Judge Smith disagreed, noting that the benefit received by Good Mariner from Sedgwick Claims’ handling was no more than incidental. Therefore, Judge Smith dismissed the contract claims against Sedgwick Claims and denied Good Mariner leave to amend those claims.
Judge rejected “in navigation” requirement for a contract to retrofit a yacht and applied the maritime economic loss rule to dismiss the claims under state tort law and the state consumer protection statute, finding no exception to application of the maritime rule based on a claim of fraud in the inducement; Holekamp v. Westport LLC, No. 24-cv-5658, 2025 U.S. Dist. LEXIS 32761 (W.D. Wash. Feb. 24, 2025) (Settle).
William F. Holekamp engaged Westport to retrofit a used 130-foot Westport yacht, including extending the yacht’s stern by 14 feet to accommodate a sport-fishing cockpit. Westport completed the work and returned the yacht to Holekamp, who was not satisfied with the quality of the work, the amount of time to complete the work, or the cost. Holekamp brought suit in state court in his home state of Missouri, and Westport removed the case to federal court. The case was transferred to federal court in Washington (where the work had been performed by Holekamp), and Holekamp filed an amended complaint alleging breach of contract along with counts under Washington law for negligent misrepresentation, fraud, negligence, unjust enrichment, and breach of the Washington Consumer Protection Act. Westport sought dismissal of Holekamp’s state law tort and statutory claims on the ground that they are precluded by the maritime economic loss rule. Holekamp responded that the case was governed by Washington law for two reasons. First, he argued that maritime law does not apply when a vessel undergoes transformative renovations and repairs lasting more than a year and is taken “out of navigation.” Second, he argued that the contract between the parties provided that Washington law applies. Judge Settle disagreed with both arguments. First, he explained that the requirement that the vessel be “in navigation” arose from seaman status cases and had “no bearing on the issue of admiralty jurisdiction over a maritime contract dispute.” He concluded: “The fact that the vessel was undergoing an extensive refit does not mean that maritime law does not apply.” As to the contractual choice of law, Judge Settle noted that the contract provided that it should be “interpreted” under Washington law. Moreover, the Supreme Court’s decision in Great Lakes Insurance v. Raiders Retreat recognized that a choice-of-law provision was not enforceable if it would conflict with an established maritime policy. As the maritime economic loss rule is firmly established, Judge Settle held that Washington law does not control over the maritime rule. Finally, Holekamp argued that the maritime economic loss rule is “not absolute,” and that there is an exception for tort claims involving fraud in the inducement. Judge Settle did not find such an exception in the maritime law, and he held that the maritime economic loss rule barred the state tort and statutory claims.
Seaman who mistakenly filed two claims in limitation action against one of the two limiting petitioners but failed to timely file a claim against the other limiting petitioner was allowed to file a late claim; In re D&S Marine Service, L.L.C., No. 4:24-cv-3575, 2025 U.S. Dist. LEXIS 34986 (S.D. Tex. Feb. 24, 2025) (Bryan).
Javen Lott injured his leg while working as a crewmember on the M/V BRIANNA ELIZABETH. Lott filed a Jones Act suit in state court in Harris County, Texas against D&S Marine Service and D&S Marine Management, and the defendants filed answers in the state suit and brought this limitation action in federal court in Texas. Lot filed two sets of answers and claims in the limitation action, but both named D&S Marine Management and neither named D&S Marine Service. D&S Marine Management answered both claims, noting in a footnote that Lott had filed two identical claims against D&S Marine Management. After the deadline to file claims passed, the two petitioners filed motions for entry of default. D&S Marine Management requested a default against all claimants except Lott, and D&S Marine Service requested a default against all potential claimants, including Lott. Lott sought leave to file a late claim against D&S Marine Service or to amend his claims against D&S Marine Management to add D&S Marine Service. D&S Marine Service argued that negligence of counsel in failing to timely prosecute a claim is not good cause to permit a late claim, but Magistrate Judge Bryan held that Lott had not wholly failed to file a claim. This was a scrivener’s error by naming the same entity in two claims. D&S Marine Service pointed out that Lott’s counsel was charged with knowledge of the statement in the footnote that two pleadings had been filed against D&S Marine Management, but Magistrate Judge Bryan did not believe that notice from D&S Marine Management was sufficient to negate good cause, particularly when counsel for Lott immediately sought to correct the error after the motion for default. D&S Marine Service also cited cases in which Lott’s counsel represented parties who were denied leave to file a late claim, but Magistrate Judge Bryan held that those cases were not at issue in this case. As there was no prejudice, Magistrate Judge Bryan held that the equitable result was to permit Lott to correct his scrivener’s error by filing a claim against D&S Marine Service (she also held that an amendment to the previously filed claim to change D&S Marine Management to D&S Marine Service would relate back to its timely filing). Accordingly, Magistrate Judge Bryan recommended that Lott be allowed to file his claim against D&S Marine Service.
Senior maritime consultant could testify as to the responsibility of the engine manufacturer and shipbuilder with respect to the suitability of the engines in connection with a vessel construction dispute and as to the standard of care for a naval architect, but his opinions on the meaning of emails invaded the province of the jury; opinion of senior mechanical engineer with respect to the tuning of the engines to work on the hull was not based on sufficient data to be admitted; Intrepid Oceans Marine, LLC v. JMS Naval Architects, LLC, No. 22-cv-81964, 2025 U.S. Dist. LEXIS 67268 (S.D. Fla. Feb. 24, 2025) (Reinhart).
Intrepid Oceans, Intrepid Tankers, and Intracoastal Marine Fuel are retailers of marine petroleum in Palm Beach County, Florida. They planned to operate a tank barge that would distribute and sell fuel to vessels in the South Florida intracoastal waterways. Therefore, they contracted with JMS Naval Architects to design and construct a tank barge (the PICKLE), propelled by two Cox CX0300 diesel outboard engines. The PICKLE was constructed by St. John’s Ship Building, but there were problems with the engines, and the owners eventually had to construct a tug to tow the PICKLE to transact business. The owners brought this suit against JMS Naval Architects for breach of contract and professional negligence, and the owners filed a motion to exclude the opinions of two experts engaged by JMS Naval Architects. The plaintiffs objected to four portions of the expert testimony of Captain Christopher Karentz, a senior maritime consultant. First, the plaintiffs argued that Captain Karentz’s opinion, based on emails, that the plaintiffs selected the engines under the advice of the engine manufacturer, would improperly invade the province of the jury. Magistrate Judge Reinhart agreed, noting that the selection of the engines was an issue for the jury to decide that did not require specialized knowledge. Similarly, Magistrate Judge Reinhart excluded Captain Karentz’ opinion that the plaintiffs presented the engine manufacturer as their preferred manufacturer, concluding that the opinion was not an expert opinion and invaded the province of the jury. Magistrate Judge Reinhart disagreed with the plaintiffs, however, with respect to Captain Karentz’s conclusions on the responsibility of the engine manufacturer and shipbuilder with respect to the suitability of the engines and the standard of care for JMS Naval Architects, concluding that his testimony was neither speculative nor unreliable and was grounded in his technical and specialized knowledge. As to Bryan E. Strawbridge, a senior mechanical engineer, and his opinion that it should have been possible to tune the engines to operate on a hull such as the PICKLE, Magistrate Judge Reinhart agreed that Strawbridge was qualified, and his testimony was supported by scientific methodology; however, Strawbridge admitted that he did not have enough data to support the conclusion, and Magistrate Judge Reinhart accordingly excluded this opinion.
Judge declined to reconsider order that bifurcated issues of liability, limitation, and apportionment of fault from damages in limitation action, clarifying that if limitation is denied, the claimants will be allowed to pursue their damage claims in state court; In re Hedron Holdings, LLC, No. 22-cv-205, c/w No. 21-cv-2295, 2025 U.S. Dist. LEXIS 33238 (E.D. La. Feb. 25, 2025) (Long).
This litigation arises from the detachment of the derrick barge EPIC HEDRON, which was moored at the Triton Fourchon Marine Base in Port Fourchon, Louisiana, when Hurricane Ida struck. Several claims for property damage and injury resulted in lawsuits in Texas and Louisiana, and Hedron Holdings and Triton Diving Services, owner and owner pro hac vice of the derrick barge, brought this limitation action in federal court in Louisiana. The claimants in the limitation action filed a motion to bifurcate the issues of exoneration and limitation of liability for a separate trial from the assessment of damages. Judge Guidry agreed that bifurcation was appropriate because the issues with respect to liability overlapped, but the issue of damages for the injury and property claimants would involve separate questions and distinct evidence from each claimant. Accordingly, Judge Guidry agreed to try the issues of liability, limitation, and apportionment of fault in a bench trial with the issue of damages bifurcated to be addressed thereafter. See November 2023 Update.
Hedron and Triton sought clarification of the bifurcation order after the case was assigned to Judge Long, asking: “If the Court denies limitation, will the Personal Injury Claimants’ damages claims be tried in this Court or in a state court of the Personal Injury claimants’ choosing?” Judge Long answered that the prior order necessarily contemplated state-court trials on the damage claims if limitation is denied. Hedron and Triton also sought reconsideration of the decision to bifurcate exoneration/limitation from damages. Judge Long recognized that a successor judge has the same discretion as the first judge in responding to a request for reconsideration. However, when presented with the same arguments, he was not persuaded to reconsider Judge Guidry’s exercise of discretion, and he declined to disturb Judge Guidry’s “considered decision.”
Judge declined to reconsider decision that delivering the cargo without obtaining endorsed bills of lading, in violation of the terms of the contract of carriage, was subject to the one-year statute of limitations in COGSA and not to state fraud claims; SLT Imports, Inc. v. SAR Transport Systems Pvt Ltd., No. 23-cv-18484, 2025 U.S. Dist. LEXIS 33891 (D.N.J. Feb. 25, 2025) (Padin).
This suit arises from a deal between SLT Imports and non-party Krishna Food Corp. by which SLT Imports provided financing (through a bank) so that Krishna Food (which had “creditworthiness issues”) could purchase food from an Indian supplier to be shipped to Krishna Food in New Jersey. The arrangement provided that SLT Imports would be the named consignee on the bills of lading and that the carrier would not release the cargo to Krishna Food without an endorsed bill of lading. SLT Imports contracted with SAR Transport for the carriage of the cargo. SAR Transport is an Ocean Transport Intermediary carrier based in Mumbai, India that uses other companies’ vessels for international shipments. The bills of lading that were issued by SAR Transport listed SLT Imports as the consignee and specified that the cargo could be released to Krishna Food only upon surrender of an endorsed bill of lading. However, SAR Transport caused the cargo to be released to Krishna without requiring that Krishna Food provide endorsed bills of lading. Instead, SAR Transport accepted letters of indemnity from Krishna Food promising to indemnify SAR Transport for releasing the cargo without the surrender of the bills of lading. Krishna Food did not pay SLT Imports for the cargo (more than a million dollars). As Krishna Food was insolvent, SLT Imports sought to collect from SAR Transport. SLT Imports originally brought this action against SAR Transport in federal court in California, and the suit was eventually transferred to the federal court in New Jersey. SLT Imports alleged claims for fraud in the execution of a maritime contract and, alternatively, breach of a maritime contract under the Carriage of Goods by Sea Act. SAR Transport moved for judgment on the pleadings that the case was governed by COGSA and was time-barred by COGSA’s one-year statute of limitations. Judge Padin agreed, reasoning that SLT Imports’ attempt to creatively plead around COGSA’s limitation by alleging fraud in the execution of the contract was unpersuasive: “Plaintiff, at most, pleads that Defendant knew it would breach the terms of the bills of lading when it issued them.” But there was no claim of misrepresenting the nature of the contract so as to allege a fraud claim. Accordingly, the claim was governed by COGSA. SLT Imports next alleged that the statute of limitations was not applicable because there was an unreasonable deviation, and the bills of lading were void ab initio. Judge Padin disagreed, answering that SLT Imports at most alleged a misdelivery to which the one-year limitation applied. Finally, Judge Padin found no inequitable conduct that would estop the carrier from relying on the one-year limitation (this was not a case where the carrier lulled the plaintiff into waiting to bring the suit). Therefore, Judge Padin dismissed the suit with prejudice. See August 2024 Update.
SLT Imports moved for reconsideration, arguing that Judge Padin erred by not granting leave to amend to assert claims for fraud in the execution and fraud in the inducement and by looking to COGSA for the relevant statute of limitations rather than state law. Judge Padin declined to grant the request for reconsideration, holding that the fraud pleading would be futile. She explained that a party claiming fraud in the execution must show excusable ignorance of the contents of the writing; however, SLT Imports alleged that both it and SAR Transport were aware of the terms of the bill of lading but that SAR Transport knew it would breach the terms when it issued the bills of lading. As for the claim for fraud in the inducement, Judge Padin reasoned that the misrepresentation must be extraneous to the agreement. However, the misrepresentation asserted by SLT Imports is that SAR Transport stated that it would comply with the terms of the contract when it knew that it would not. As that was nothing more than an intentional breach, an amendment for fraud in the inducement would also be futile. As there were no state-law claims, the case was properly dismissed based on COGSA’s one year statute of limitation, and Judge Padin denied the motion for reconsideration. SLT Imports filed a notice of appeal to the Third Circuit on March 25, 2025.
Florida governmental agencies could not breach agreements entered into between a yacht owner and NOAA with respect to a vessel that grounded in a federal wildlife refuge, and the yacht owner’s complaint against the federal government for matters 15 years after the agreements failed to plausibly state a claim for breach of contract; Halmos v. United States, 2025 U.S. Dist. LEXIS 34570 (S.D. Fla. Feb. 25, 2025) (Strauss), recommendation adopted sub nom. Halmos v. Spinard, No. 22-cv-10006, 2025 U.S. Dist. LEXIS 50703 (S.D. Fla. March 18, 2025) (Martinez).
The saga of Peter Halmos and his sailing yacht LEGACY returns to the Update after a hiatus of more than 10 years. The LEGACY ran aground in the Great Heron National Wildlife Refuge in the Florida Keys National Marine Sanctuary in October 2025 as a result of Hurricane Wilma. Halmos and vessel owner International Yachting Charter Services assert that they found themselves “embroiled in a seemingly never-ending string of investigations, government enforcement actions, and . . . civil and criminal actions [following] LEGACY’s unintentional grounding . . . .” They resolved their disputes by entering into two written agreements in 2007 with the National Oceanic and Atmospheric Administration; however, Halmos asserts that he continued to remain involved in a “series of investigations, regulatory actions, civil litigation, and criminal prosecutions.” He brought this action in federal court in Florida in 2022 against the Florida Department of Environmental Protection, the Florida Fish and Wildlife Conservation Commission, and a number of federal agencies and administrators, (including NOAA), asserting actions for breach of contract and breach of the implied covenant of good faith and fair dealing, and seeking specific performance and injunctive relief. In 2023, Judge Martinez agreed to dismiss the complaint on the ground that Halmos’ claims against them were barred by sovereign immunity and because the Florida defendants were not parties to the contracts with NOAA. He dismissed the claims against the federal defendants, noting that the agencies and administrators who were named are not proper parties. Judge Martinez added that the complaint should additionally be dismissed because the conclusory allegations were insufficient to state a cause of action for breach of the contracts. Judge Martinez gave the plaintiffs leave to name the United States as the proper party, and the plaintiffs named the United States, but the allegations remained largely the same. The United States moved to dismiss the amended complaint, and the plaintiffs were given leave to file a motion to amend (with the amended complaint attached). Instead of filing a motion for leave, however, the plaintiffs filed a motion for reconsideration of the dismissal order. Magistrate Judge Strauss recommended denial of the motion, agreeing that the Florida defendants were entitled to sovereign immunity and rejecting the argument that the Florida defendants were bound by the terms of the contracts between the plaintiffs and NOAA. Likewise, Magistrate Judge Strauss declined to reconsider the ruling that the amended complaint stated a claim for relief for breach of contract that was plausible on its face. Accordingly, he recommended that the amended complaint should be dismissed. Although the plaintiffs filed a late objection to the recommendation, Judge Martinez reviewed the recommendation and held that the findings and conclusions were well supported by the record and relevant authorities. Accordingly, he adopted the recommendation.
Judge dismissed extracontractual claims under New York law in vessel owner’s counterclaim against its hull insurer, which denied the vessel owner’s damage claim, but the Judge gave leave to the owner to replead; the Judge struck the jury demand on the owner’s counterclaim as the insurer brought the declaratory judgment action in admiralty; Accelerant Specialty Insurance Co. v. Buzbee Robertson, LLC, No. 8:24-cv-2643, 2025 U.S. Dist. LEXIS 34081 (M.D. Fla. Feb. 26, 2025) (Covington).
This litigation arises out of the sinking of Buzbee Robertson’s 54-foot Azimut yacht, PATRIOT, when Hurricane Beryl passed through Galveston, Texas. The vessel’s insurer, Accelerant Specialty, denied the claim on the ground that Buzbee Robertson breached the policy’s fire and windstorm plan warranties and made misrepresentations in its renewal questionnaire, and it brought this action in federal court in Florida seeking a declaration that the policy was void. Buzbee Robertson filed a counterclaim, asserting claims under New York law for breach of contract, breach of the implied covenant of good faith and fair dealing, deceptive business practices, fraud, and unjust enrichment (alleging that Accelerant systematically accepts premiums with no intent of paying claims by citing immaterial defects that are unrelated to the loss). Accelerant moved to dismiss all of the counterclaims except the claim for breach of contract, and Judge Covington noted that Buzbee Robertson’s claim for breach of the implied covenant of good faith was based on the same conduct as the claim for breach of contract (wrongly delaying and denying the claim). Therefore, she dismissed the implied covenant claim as duplicative, but she gave Buzbee Robertson one opportunity to amend. As for the claim for violation of the deceptive business practices statute, Accelerant argued that the conduct complained of was fully disclosed in the policy, which contained the express warranties relied on by Accelerant as well as the doctrine of uberrimae fidei. Judge Covington agreed to dismiss the claim, reasoning that where the conduct complained of is specifically provided in the policy, it is not a deceptive practice to rely on the disclosed provisions. However, Judge Covington gave Buzbee Robertson an opportunity to amend the claim. With respect to fraud, Judge Covington held that the allegations were conclusory and insufficiently pleaded. However, she gave Buzbee Robertson leave to amend the allegations. Judge Covington declined to dismiss the claim for unjust enrichment, arguing that it was unjust for the insurer to retain the premiums in the event the policy is declared void. Finally, Judge Covington struck the jury demand in Buzbee Robertson’s counterclaim as the suit was brought by Accelerant in admiralty, and Accelerant’s Rule 9(h) designation trumped the demand for a jury in the counterclaim.
Breach of captain/crew warranty voided coverage in yacht policy under applicable New York law despite the lack of causal connection between the breach and the loss; Parr v. Yachtinsure, Ltd., No. 24-cv-438, 2025 U.S. Dist. LEXIS 34225 (E.D. La. Feb. 26, 2025) (Brown).
Allan T. Parr, Jr., is the sole member of Parr T, LLC, which owns the 77-foot Marquis Open Bridge motor yacht MN AFTER PARR T. The vessel was insured by Yachtinsure with a policy providing for application of New York law when general maritime law is unavailable. During a voyage from Key West, Florida, in which Parr was operating the vessel, the vessel began taking on water, and a salvor identified the source of the leak as an unseated hose clamp that allowed water to enter via the propeller shaft. A salvor packed the opening of the leak and the vessel was taken to a shipyard for repair. The insurer denied the loss based on breach of express warranties in the policy, and Parr brought this suit in federal court in Louisiana. Yachtinsure moved to dismiss the complaint on the ground that Parr failed to have an approved mate aboard the vessel, in breach of the captain and crew warranty, and that the failure was also a breach of the implied warranty of seaworthiness. The policy required a minimum of one underwriter-approved operator and one underwriter-approved mate during navigation. Parr was listed as an approved operator, but the question was whether the failure to have the approved mate voided coverage. Chief Judge Brown began by holding that state law applied to the issue pursuant to Wilburn Boat as there is no entrenched federal precedent requiring that the breach be the cause of the loss. Therefore, she looked to state law, pursuant to the choice-of-law provision in the policy. Parr argued that New York law prohibits named operator endorsements except for oceangoing vessels; however, Chief Judge Brown answered that the geographical limits of the policy extended from Maine to Texas and The Bahamas, not exceeding 250 miles offshore. Accordingly, she held that the vessel was oceangoing and that the express warranty was enforceable under New York law. As New York law requires literal compliance with express warranties, regardless of causal connection, Chief Judge Brown held that the breach of the warranty voided coverage and the case should be dismissed. Parr filed a notice of appeal on March 10, 2025.
Vessel owner’s failure to disclose losses and its breach of the fire suppression warranty voided insurance coverage for damage to vessel; Clear Spring Property & Casualty Co. v. Wello & Mom, LLC, No. 21-cv-24234, 2025 U.S. Dist. LEXIS 34408 (S.D. Fla. Feb. 26, 2025) (Altman).
After Wello and Mom’s vessel LOLOTTE partially sank, it made a claim with its insurer, Clear Spring Property & Casualty Co. Clear Spring denied the claim based on Wello and Mom’s failure to disclose material facts in the insurance application and its breach of the fire suppression warranty, and Clear Spring filed a declaratory judgment action in Florida federal court in admiralty. A few months later, Wello and Mom brought a suit against Clear Spring in state court in Miami-Dade County, Florida, and Clear Spring filed a motion to dismiss in the state court based on the forum-selection clause in the policy that provided for exclusive jurisdiction in federal court, in particular the federal district court in which the insured (or its insurance agent) resides. Judge Diaz dismissed the state suit, and Wello and Mom argued on appeal that the forum-selection clause was unenforceable because it was not negotiated and because it deprived Wello and Mom of the right to a jury trial. Citing the “well-entrenched rule of federal admiralty law” favoring the enforcement of forum-selection clauses in maritime contracts (including marine insurance policies), Judge Gordo, writing for the Florida Third District Court of Appeal, held that the presumption of validity of the clause applied notwithstanding the insured’s argument that it was deprived of the right to a jury trial. As Wello and Mom did not establish that enforcement was unreasonable and “so gravely difficult and inconvenient” as to deprive the insured of its day in court, the appellate court affirmed the decision of the lower court to dismiss the state suit. See January 2024 Update.
Wello and Mom moved for rehearing and clarification, and the Florida Court of Appeal denied the motion but withdrew its prior opinion and substituted an opinion that contained a clarification (limitation to a maritime forum-selection clause as highlighted below). The sentence setting forth the court’s response to Wello and Mom’s contention that the policy’s forum-selection clause should be deemed unenforceable as it was not negotiated and deprived Wello and Mom of the right to a jury trial originally stated: “Contrary to Wello’s arguments, a forum selection clause which is not the subject of negotiations often retains its enforceability.” (Citing Carnival Cruise Lines v. Shute). The revised opinion states: “Contrary to Wello’s arguments, an admiralty and maritime forum selection clause which is not the subject of negotiations often retains its enforceability.” (Citing Carnival Cruise Lines v. Shute). See April 2024 Update
Meanwhile, in the federal action, Clear Spring and Wello and Mom filed cross-motions for summary judgment. Wello and Mom (owned by Roy and Amelia Cisneros) purchased the 2003 Sunseeker LOLOTTE in 2003 for $94,000. In 2016, Wello and Mom applied for insurance through Concept Special Risks (listing the purchase price at $180,000), and a policy was issued by Great Lakes Insurance. The vessel had losses in 2016 and 2018, and Great Lakes denied one claim and paid the other through a settlement. In July 2018, Wello and Mom applied for insurance through Concept Special Risks, and a policy was issued by Great Lakes. For loss history for the past 10 years, Wello and Mom listed “none.” It continued to list none for the renewals for 2019, 2020, and 2021. The 2021 policy, issued by Clear Spring, afforded hull coverage of $230,871, and was in place at the time of the partial sinking in September 2021. Clear Spring argued that the policy was void ab initio because Wello and Mom failed to disclose the prior losses. Wello and Mom responded that it was not obligated to disclose the losses because it had replaced the engine after the losses. The policy contained a choice-of-law clause for New York law in the absence of well-established, entrenched maritime law, and Magistrate Judge Reinhart applied the maritime law doctrine of uberrimae fidei that a material misrepresentation on the application is grounds for voiding the policy (even if the misrepresentation is a result of mistake, accident, or forgetfulness). He summarily rejected the argument that the vessel involved in the loss was not the same vessel that experienced the losses in 2016 and 2018 because of the replacement of the engines, stating: “New engines or not, there is no dispute that the Hull Identification number remained the same, so the response to the loss question was inaccurate.” He concluded that no reasonable jury could conclude that the omission did not materially affect the calculation of the risk. Magistrate Judge Reinhart then considered, under New York law, whether breach of the fire suppression warranty voided the policy even though the breach played no role in the loss. The last tag on the system was in 2019, and Wello and Mom’s principal, Roy Cisneros, asserted that to the best of his knowledge he had hired an individual to certify/tag the system as necessary since the purchase of the vessel. That tag reflected that the validity of the certification expired a year later, in 2020, prior to the loss. Accordingly, Magistrate Judge Reinhart recommended that the policy also be declared void for breach of the fire suppression warranty. Therefore, he recommended that the court grant Clear Spring’s motion and deny Wello and Mom’s motion. See November 2024 Update.
Wello and Mom objected to Magistrate Judge Reinhart’s decision on uberrimae fidei, but Judge Altman rejected all of the arguments. Wello and Mom argued that Clear Spring knew about the 2016 loss when it issued the policy, but the best inference that could be drawn was that Clear Spring might have been able to discover the loss if it had conducted a more thorough investigation. Judge Altman explained: “But the entire point of the uberrimae fidei doctrine is that the insured has the responsibility to ‘fully and voluntarily disclose to the insurer all facts material to a calculation of the insurance risk’--so that the insurance company isn’t obliged to undertake an intensive (and expensive) investigation of the insured before issuing the policy.” Second, Wello and Mom argued that because it had completely replaced the Yamaha engines that were previously on the vessel with new Suzuki engines, it did not need to disclose the 2018 loss because the only part of the vessel affected by the 2018 loss was the engines that were replaced and no longer existed. Judge Altman rejected Wello’s “bizarre ‘Ship of Theseus paradox’” as “frivolous.” He reasoned: “Wello would have us find that the replacement of just one of the Vessel’s many components magically transforms the Vessel into an entirely new ship in a way that (conveniently) erases the boat’s entire loss history. This is absurd, and no reasonable person would believe that replacing one part of a vessel—even something as important as the engines—would create a new vessel in the eyes of the insurer.” Third, Judge Altman rejected Wello and Mom’s argument that the renewal questionnaire was ambiguous, concluding that the answers conclusively refuted the argument. Wello and Mom next argued that the evidence did not establish as a matter of law that the omission of the loss history was material to the decision to issue the policy; however, Judge Altman disagreed, explaining that the testimony of the underwriter on materiality was the same as was held sufficient in the Dream On Yacht case (see October 2024 Update). With respect to the fire suppression warranty, Wello and Mom objected to application of New York law as not having a substantial relationship with the parties or policy. Without having to decide what the Supreme Court meant in Raiders Retreat when it applied the choice-of-law provision as long as there was no reasonable basis for the jurisdiction, Judge Altman found that the New York provision was “plainly enforceable” as Clear Spring is an admitted carrier in New York, maintains bank accounts in New York, and accepts service of process through attorneys in New York. Judge Altman also rejected a “mysterious,” “non-existent” equitable result exception and applied New York law. On the merits, Wello and Mom objected that Magistrate Judge Reinhart did not address affidavits that Roy Cisneros, a member of Wello and Mom, weighed the fire extinguishing tanks once a year since the purchase of the vessel. However, that did not establish that the equipment had not been certified in more than a year and its certifications had expired. Thus, Judge Altman agreed that there had been a material breach of the fire suppression warranty, and he declared the policy void ab initio.
Captain hired by bareboat charterer of vessel for private use of the charterer was not excluded by provision in policy issued to the Captain that extended coverage to non-owned vessels that are not being used for other than private pleasure; Markel American Insurance Co. v. Neverauskas, No. 23-cv-1712, 2025 U.S. Dist. LEXIS 34460 (N.D. Ill. Feb. 26, 2025) (Perry).
Chicago AquaLeisure, a charter rental company, offered the yacht LA AQUAVIDA to the public for charter. The charterer was required to hire a captain to operate the vessel, selected from a list of approved captains. Joseph I. Neverauskas was on the list. On August 13, 2022, Chicago AquaLeisure bareboat chartered the vessel to Fabian Rosado, who hired Neverauskas to captain and operate the vessel. While operating the vessel in the Playpen area of Lake Michigan, three passengers on the vessel, Lana Batochir, Marija Velkova, and Jacob Houle were injured. The passengers filed lawsuits against Neverauskas in the state court in Cook County, Illinois, and Neverauskas sought coverage from Markel American Insurance Company pursuant to a Helmsman Yacht Policy issued by Markel to Neverauskas that provided P&I coverage in the amount of $300,000 for owned yachts or non-owned yachts operated by Neverauskas with the owner’s permission. Citing the definition of a non-owned yacht as a watercraft being operated by the insured with the owner’s permission that is not “being used for other than private pleasure,” Markel declined coverage and brought this suit in federal court in Illinois seeking a declaration that it owed no defense or indemnity to Neverauskas in connection with the lawsuits. Markel argued that the vessel was being used for commercial purposes as Neverauskas was being paid to operate the vessel under a commercial bareboat charter party. Judge Perry disagreed, believing that the definition was ambiguous because it did not specify whose use of the watercraft was relevant in determining whether the boat was being used for private pleasure. Judge Perry reasoned that the policy could easily have said “being used by you for other than private pleasure” or “being used for other than your private pleasure.” As the definition did not limit coverage to watercraft being used for Neverauskas’s private pleasure, Judge Perry concluded that Neverauskas was covered.
Ferry operator should have warned elderly passenger who walked with a cane that the elevator on the ferry was not working before allowing the passenger to board the vessel (on which she fell while trying to climb the stairs to the passenger cabin); Duszak v. Bridgeport & Port Jefferson Steamboat Co., No. 21-cv-7063, 2025 U.S. Dist. LEXIS 34920 (E.D.N.Y. Feb. 26, 2025) (Merchant).
Janice M. Duszak and her adult daughter Joanne Hubbard were passengers on the Bridgeport & Port Jefferson Steamboat Co. ferry that operates across Long Island Sound between Bridgeport, Connecticut and Port Jefferson, New York. Passengers were not allowed to stay in their vehicles and were directed to the passenger cabin. The elevator was not operative, and Duszak, who requires a cane, was required to take the stairs. Duszak fell while ascending the stairs, and she brought this suit against the ferry operator in federal court in New York for failure to provide an operational elevator and failure to warn of the lack of the operational elevator. The ferry operator moved for summary judgment that it gave an adequate warning and did not breach any duty to Duszak. Duszak argued that, in view of her age (88, for which she paid a senior citizen fare), disability (she used a cane), and the defendant’s practices, the ferry operator should have advised her, prior to boarding the vessel, that there was no operable elevator on the ferry. Judge Merchant agreed that the injury was foreseeable based on the broken elevator, the requirement that passengers go to the passenger cabin, and the fact that some passengers are more susceptible to injury on stairs instead of an elevator. As the ferry operator was aware of Duszak being a senior citizen, Judge Merchant concluded that there was sufficient evidence that the ferry should have warned Duszak before she boarded the ferry. Therefore, Judge Merchant denied the ferry operator’s motion for summary judgment.
Later Texas forum-selection clause in Letter Agreement superseded earlier London arbitration clause in Global Agreement for Purchase of Services, requiring resolution of dispute between the parties in Texas; WesternGeco, L.L.C. v. Magseis FF LLC, No. H-22-3080, 2025 U.S. Dist. LEXIS 35224 (S.D. Tex. Feb. 27, 2025) (Lake).
WesternGeco’s affiliate entered into a Global Agreement for Purchase of Services with Magseis’ parent company in connection with the provision of seismic data and marine geological and seismic acquisition services. The Agreement provided resolution of disputes with London arbitration. The parties subsequently executed a Service Order that provided for application of general maritime law and, in its absence, Texas law. After a dispute ensued over cost overruns, the parties entered into a Letter Agreement that contained a forum-selection clause for the state or federal courts in Fort Bend County, Texas. There was a dispute over operations in the Gulf of America, and WesternGeco brought this suit in state court in Fort Bend County, Texas, which Magseis removed to federal court, and Magseis initiated arbitration in London. Magseis moved to compel arbitration and to dismiss the lawsuit, and Judge Lake had to resolve the conflict between the arbitration clause and the forum-selection clause. He concluded that the Global Agreement and Letter Agreement should not be construed as a single contract and that the later-in-time forum-selection clause superseded the arbitration clause. As Magseis stipulated that the court would decide which contract controlled the forum, Judge Lake denied the motion to compel arbitration and denied WesternGeco’s motion for a preliminary injunction as moot.
Land-based injury and damage suits brought in state court against contractors on a Naval vessel, arising from a fire on the vessel while it was docked at a Naval base, were removable to federal court based on federal enclave jurisdiction; Adame v. National Steel & Shipbuilding Co., Nos. 24-cv-297, 24-cv-306, 24-cv-346, 24-cv-350, 2025 U.S. Dist. LEXIS 35831 (S.D. Cal. Feb. 27, 2025) (Battaglia).
The United States Navy’s amphibious assault ship, the USS BONHOMME RICHARD, was undergoing maintenance pier-side at the Naval Base in San Diego, California. National Steel & Shipbuilding Co. and United Support Services were under contract with the Navy to service the vessel. A fire originated from the cargo area of the ship and quickly spread through the ship, resulting in several explosions. The fire lasted from July 12, 2020 until July 16, 2020, and a host of homeowners, renters, business owners, and other individuals claimed that they suffered damage to their health and property from exposure to more than a dozen harmful substances released into the air. The injured/damaged parties brought suit in California state court against National Steel and United Support, and the defendants removed the cases to federal court based on federal enclave jurisdiction, the Federal Officer Removal Statute, and admiralty jurisdiction. The defendants argued that the suits arose from conduct that took place within a federal enclave (the Naval Base), and that the ship that was docked at the Base was itself a federal enclave. The plaintiffs moved to remand the suits, arguing that the injuries did not arise from a federal enclave because a tort is not complete without an injury, and the injuries did not occur in the enclave. Judge Battaglia disagreed, answering that the Ninth Circuit does not require that both the injury and tortious conduct occur on a federal enclave and that it is the location of the conduct that controls (this was not a situation like the climate-change cases in which the connection with a federal enclave such as the outer Continental Shelf was too attenuated). The allegation that the plaintiffs were damaged by days of exposure to smoke with harmful chemicals was sufficiently connected to the conduct in the enclave. The plaintiffs also argued that the location of the ship on navigable waters could not be within the federal enclave, implicitly arguing that water cannot be both navigable and a federal enclave. Judge Battaglia disagreed as the waters were located within the bounds of a military installation (and were restricted as a “security zone”). Finally, Judge Battaglia held that the federal enclave extended to the BONHOMME RICHARD, which was docked within the enclave. Therefore, he denied the motions to remand.
Admiralty law, including principles for joint and several liability and allocation of liability with respect to non-parties, applied in crash of plane into the ocean when it ran out of fuel; Murphy v. Airway Air Charter Inc., No. 23-cv-23654, 2025 U.S. Dist. LEXIS 37311 (S.D. Fla. Feb. 28, 2025) (Bloom).
Richard C. Murphy, III, chartered a Cessna 402B from Airway Air Charter for a flight from Opa-Locka, Florida to Chub Cay in The Bahamas. The aircraft was owned by Venture Air Solutions and was operated by Airway Air Charter. Atlantic Aviation provided supplies and fuel. Murphy was the sole passenger, and the plane was piloted by Alex Gutierrez. The plane ran out of fuel during the flight, causing it to crash into the ocean. Murphy and his wife brought this suit in state court in Miami-Dade County, Florida, against Airway Air Charter, Venture Air Solutions, and Gutierrez, asserting claims under Florida law. The defendants moved to dismiss the case, arguing that the claims were governed by the Warsaw Convention (as updated by the Montreal Convention), not Florida law, and the plaintiffs filed an amended complaint based on the Warsaw Convention. The plaintiffs added Atlantic Aviation in their third amended complaint, and Atlantic Aviation removed the case based on federal question jurisdiction (from the Warsaw Convention) and admiralty jurisdiction. In federal court, the plaintiffs filed a fourth amended complaint, attaching the Charter Agreement. Airway Air Charter and Gutierrez moved to dismiss the fourth amended complaint, citing the liability waiver for injuries in the Charter Agreement. The plaintiffs responded that Airway Air Charter and Gutierrez had waived their right to raise the waiver as a defense by repeatedly failing to raise it as an affirmative defense in their answers to the previous complaints filed by the plaintiffs. Alternatively, the plaintiffs argued that the waiver was unenforceable under the Warsaw Convention. Airway Air Charter and Gutierrez argued that they did timely raise the waiver defense in their response to the fourth amended complaint, which was the operative pleading at the time. Judge Bloom rejected that argument as the Eleventh Circuit has held that an amended complaint does not automatically revive all defenses or objections that the defendant may have waived in response to a prior complaint. She held that Airway Air Charter and Gutierrez waived reliance on the waiver by failing to raise it as an affirmative defense when answering the complaint in state court. Judge Bloom also addressed the argument that the waiver was unenforceable and the defendants’ argument that the Warsaw Convention does not prevent the parties from entering into a different agreement limiting liability. Judge Bloom agreed that the parties can enter into agreements for different limitations on liability, but the agreements may only provide a limitation in excess of the cap on liability of $75,000. As the waiver in this case provided for a release of all liability, Judge Bloom held that the defendants had not shown that Murphy failed to state a claim based on the waiver provision. See May 2024 Update.
The parties filed several motions that were addressed by Judge Bloom. The defendants challenged the testimony of Murphy’s accident reconstruction expert, Mark Pottinger, that the aircraft most likely experienced dual engine failure as the result of fuel starvation when the pilot mismanaged available fuel by operating on the main fuel tanks until the fuel in those tanks was depleted. Although the defendants argued that Pottinger only held a single-engine private pilot’s license, not the multi-engine license required to fly the Cessna 402B, Judge Bloom noted that Pottinger had extensive qualifications from his education, training, and experience. The defendants next argued that Pottinger’s testimony should be excluded because the overwhelming evidence indicated the main tanks were fueled (but Pottinger opined the auxiliary tanks were fueled) and because his opinions were based on an unreliable Report of the Aircraft Investigation Authority of The Bahamas. However, Judge Bloom found sufficient support for Pottinger’s opinions, and the fact that the Report is inadmissible did not mean that his testimony was unreliable. Judge Bloom did agree that Pottinger could not testify that there was a violation of aviation regulations; however, he could testify as to the requirements of the regulations and about the evidence that may indicate those regulations were not followed. Judge Bloom also held that Pottinger’s opinion that Atlantic should have taken steps to preserve all video of the aircraft fueling, which deprived the accident investigators of valuable information, should be excluded because Pottinger’s experience and training did not demonstrate reliability of his opinions with respect to video footage and because his opinion was not probative of whether the defendant acted negligently in fueling the aircraft. Murphy sought to exclude the opinion of the defendants’ rebuttal expert, Keith O. Major, that the Report of the Bahamian Authority was inadmissible under Bahamian law. Judge Bloom agreed to strike that opinion because Murphy’s expert could rely on an inadmissible report in formulating his opinion and because Bahamian law was not applicable in this case. Judge Bloom next considered Murphy’s motion for summary judgment that the limitation of liability was unenforceable under the Warsaw Convention. The parties provided confusing briefing on whether the original Warsaw Convention or its subsequent protocols (the Hague Protocol or the Montreal Convention) applied. Murphy argued that the Hague Protocol applied because The Bahamas is not a party to the Montreal Convention, but the United States is a party to all three. As the flight was part of a round trip to/from the United States, Judge Bloom held that the Montreal Convention applied with its prohibition on agreements absolving a carrier from liability and its prohibition on limitation of liability of damages of $75,000 or less. Consequently, Judge Bloom held that the defendants could not rely on the limitation. Finally, Atlantic moved for summary judgment, arguing that any breach of duty in fueling the aircraft was not the proximate cause of the accident because the pilot bears the ultimate responsibility for the operation of the plane, including ensuring there is sufficient fuel. Judge Bloom believed, however, that the issue of proximate causation was properly left to the jury. See October 2024 Update.
In preparation for trial, Judge Bloom considered the parties’ motions in limine and held that the Bahamian Aircraft Accident Investigation Authority Report was admissible, once authenticated under the public records exception. She rejected the argument that the report was inadmissible under Bahamian law (as the claims are governed by Florida law) and the argument that the court should analogize the report to the inadmissibility of NTSB reports (answering that the report “is not a NTSB report”). Airway argued that evidence of Murphy’s emotional damages should be excluded based on the limitation in the Montreal Convention that a plaintiff cannot recover emotional damages unless they are “sufficiently connected to a physical injury.” Judge Bloom answered that to the extent Murphy can establish that he suffered emotional harm as a direct result of the physical injuries he suffered, the damages are recoverable.
Venture Air Solutions, owner of the plane, was sued for vicarious liability of the pilot and under a dangerous instrumentality theory. Venture sent Murphy a proposal for settlement that was unanswered, and Judge Bloom eventually granted summary judgment in favor of Venture. Venture then sought attorney fees and costs (pursuant to Florida’s statute providing for recovery of attorney fees), and Magistrate Judge Torres recommended an award of attorney fees because Venture prevailed on state as well as federal claims. Magistrate Judge Torres recommended an award of fees in the amount of $28,359.75, based on rates of $225 (partner) and $175 (associate).
The case was tried to a jury, and, on October 16, 2024, the jury found that Alex Gutierez and Airway were negligent, but that Atlantic was not negligent. The jury apportioned fault to Murphy (20%), Airway (40%), and Gutierrez (40%). The jury found damages in the total amount of $2,912,888--for past medical expenses ($12,888), past and future pain and suffering, disability, impairment, and disfigurement ($1,160,000), and mental anguish, inconvenience, and loss of capacity for the enjoyment of life as a result of the bodily injury ($1,740,000). Judge Bloom accordingly issued a final judgment against both Airway and Gutierrez. Airway and Gutierrez filed a motion for new trial and a notice of appeal. See December 2024 Update.
Murphy filed an objection to Magistrate Judge Torres’ recommendation with respect to attorney fees, arguing that federal law applied (adopting the American Rule for attorney fees) rather than Florida law (offer of judgment statute). Judge Bloom noted that Magistrate Judge Torres had concluded that Venture prevailed on claims under Florida law, but Murphy argued that the case was removed, in part, based on admiralty jurisdiction and that substantive admiralty law applied regardless of how Murphy pleaded the case: “Once a court enjoys admiralty jurisdiction, the substantive law of admiralty comes with it. That includes the American Rule.” Venture responded that there was supplemental jurisdiction over the claims asserted by Murphy and that Murphy had not contended that maritime law applied to the claims until it responded to the recommendation of Magistrate Judge Torres. Judge Bloom agreed that the argument based on application of admiralty law, which had not been presented to the Magistrate Judge, was untimely, stating that although Murphy “may indeed be correct that Venture is not entitled to attorneys’ fees because the claims are governed by federal admiralty law,” she did not have reach the merits given the “failure to properly preserve the issue for the Court’s review.” Accordingly, as the argument was untimely, Judge Bloom adopted the recommendation with respect to attorney fees. See April 2025 Update.
Airway and Gutierrez moved for a new trial and for judgment as a matter of law. Airway and Gutierrez argued that they were entitled to assert a Fabre defense under Florida law by which the jury would be able to assess fault against non-party Cessna Aircraft Corp. Judge Bloom rejected that argument as the claims were brought under maritime law (and treaty), not state law. As maritime law does not recognize the state rule on apportionment of fault, it would be error to allocate fault to a nonparty. The defendant also objected to the introduction of “enhanced videos of the fueling” that had not previously been produced. Judge Bloom easily rejected the argument as the enhancement was merely zooming in on the fueling, stating: “There is nothing inherently prejudicial about making it easier for the jury to review a video.” The defendants argued that the judgment improperly held Gutierrez jointly and severally liable, contrary to Florida law. Judge Bloom disagreed as the claims arose under the Montreal Convention and, more importantly, general maritime law, which provides for joint and several liability of defendants. Finally, the defendants argued that the sole cause of action asserted by Murphy was under the Warsaw Convention, which is drastically different from the Montreal Convention. Judge Bloom agreed that Murphy pleaded the case under the Warsaw Convention, but she noted that a Warsaw Convention claim involves the same elements as a Montreal Convention claim. Accordingly, the defendants were on sufficient notice of the nature and grounds of the plaintiff’s claims. And, although there is a difference in the defenses available under the conventions, the case was tried based on the Montreal Convention so there was no prejudice to the defendant.
After finding that an offshore worker’s Jones Act claim was not fraudulently pleaded, the federal judge declined to sever and remand the Jones Act claim and remanded the entire case that was removed under the OCSLA; Clapp v. Halliburton Energy Services, Inc., No. H-24-3550, 2025 U.S. Dist. LEXIS 39184 (S.D. Tex. Mar. 5, 2025) (Lake).
Eric Clapp, an employee of Halliburton, claims that he was injured while working on the drillship NOBLE GLOBETROTTER II (located on the outer Continental Shelf of the Gulf of America in Mississippi Canyon Block 809, approximately 140 miles from New Orleans, Louisiana), when Hurricane Ida struck the drillship. Clapp brought this suit against Halliburton in state court in Harris County, Texas, alleging a negligence claim as a seaman under the Jones Act and seeking recovery for failure to pay maintenance and cure under the general maritime law. Halliburton removed the case to federal court in Texas based on the jurisdiction of the Outer Continental Shelf Lands Act, arguing that the Jones Act claim was fraudulently pleaded and, alternatively, in the event the Jones Act claim was not fraudulently pleaded, requesting that the Jones Act claim be severed and remanded to state court. Judge Lake agreed that the federal court had subject matter jurisdiction over the action pursuant to the OCSLA as the cementing services provided by Halliburton for the completion of the well arose out of exploration and production of oil and gas on the OCS. Judge Lake then addressed whether the Jones Act claim was fraudulently pleaded, and he cited evidence from Clapp that he had spent more than 30% of his work time on the NOBLE GLOBETROTTER II, satisfying the duration element. As to the nature element as defined in Sanchez, Judge Lake cited the Fifth Circuit’s analysis in Santee to find that Clapp’s work on the drillship subjected him to the perils of the sea, that he owed his allegiance in part to the vessel, that his work was sea-based, and that his assignment was not limited to a discrete task and included sailing with the vessel. Therefore, Judge Lake did not strike the Jones Act claim and held that it must be remanded. Finally, Judge Lake considered whether the Jones Act claim should be severed from the maintenance and cure claim. After previously ruling that the claims were removable under the federal question jurisdiction of the OCSLA (as held by the Fifth Circuit in Barker), Judge Lake ruled that the maintenance and cure claim did not present a federal question for purposes of Section 1331. Therefore, he held that the provision in the Removal Act allowing severing and remanding of nonremovable claims in cases removed under the federal question jurisdiction was not applicable (in contrast to the Perry case, see September 2024 Update, the McDonald case, see July 2023 Update, and the Ashcraft case, see October 2022 Update, involving removal under the OCSLA with the Jones Act claim severed and remanded).
Downstream party in the chain for the supply of bunkers to a vessel, who seeks to reallocate payment, cannot resurrect a lien that was extinguished upon payment; Geoserve Energy Transport DMCC v. 07 VEGA S, No. 24-cv-2148, 2025 U.S. Dist. LEXIS 39853 (S.D. Cal. Mar. 5, 2025) (Huie).
Geoserve Energy was contacted by Infinity Shipping to provide bunkers to the M/V 07 VEGA 7. The order originated with the time charterer of the vessel, through a broker, who placed the order with a company (TSL Shipping) that subcontracted with Infinity Shipping, which subcontracted with Geoserve. Geoserve contracted for the supply of the bunkers, and the charterer paid TSL, which arranged for payment of $188,254 for the fuel. Infinity Shipping later advised Geoserve that the payment should be applied for the bunkers supplied to a different vessel, the T RIGEL, to which Geoserve had provided bunkers. Infinity Shipping ultimately paid $20,000 for the bunkers for the 07 VEGA S, but did not pay the remainder of the $188,254. Geoserve brought this suit in federal court in California against the vessel, and the vessel was arrested. The charterer appeared in the proceeding and advised: “We are stunned to see Infinity instructing these funds to be allocated to another vessel than the 07 Vega S . . . . We have no knowledge or involvement with the T Rigel, and there is absolutely no connection with the 07 Vega S.” At a post-arrest hearing, Geoserve, Infinity Shipping, and the charterer agreed to the posting of security and for the release of the vessel, and Judge Huie released the vessel. The charterer then filed a motion to dismiss the action, and Geoserve did not file a response. Judge Huie dismissed the complaint, without leave to amend based on the failure to file a response and also on the merits, concluding that the complaint did not allege that Infinity Shipping was an agent for the charterer and that the payment extinguished the lien. Geoserve moved to set aside the dismissal, and Judge Huie reiterated his prior decision on the merits. He again concluded that there was no evidence that Infinity Shipping was acting as an agent for the charterer and that the lien was extinguished when the charterer made the payment to TSL (a downstream party who seeks to reallocate the payment does not thereby resurrect the lien). Finally, Judge Huie noted that once the arrest was vacated, there was no longer a basis for maintaining an in rem action against the vessel. Accordingly, he declined to reconsider the dismissal of the complaint.
Allegation that employees of cruise line were on notice of a hole in the path to the beach of a private island because they patrolled and inspected the island was insufficient because it did not describe the inspections or patrols, how the employees should have observed the dangerous condition, or how long the dangerous condition existed; prior accidents on the island did not contain sufficient evidence to establish substantial similarity; Armbrust v. Carnival Corp., No. 1:24-cv-24259, 2025 U.S. Dist. LEXIS 41849 (S.D. Fla. Mar. 6, 2025) (Goodman), recommendation adopted, 2025 U.S. Dist. LEXIS 52415 (S.D. Fla. Mar. 21, 2025) (Williams).
Brenda Armbrust, a passenger on the CARNIVAL DREAM, disembarked the vessel to go ashore at Half Moon Cay, a private island in The Bahamas. While walking to the beach on the island, she was injured when she stepped in a hole. She brought this suit against the cruise line in Florida federal court, and the cruise line moved to dismiss the complaint for failing to sufficiently allege notice of the dangerous condition. Armbrust responded that the cruise line had notice because its employees inspected and patrolled the island to ensure the paths to the beach were in proper condition, and the employees were in the area prior to the incident and should have observed the condition. She also cited prior incidents involving falls on the island. Magistrate Judge Goodman concluded that the allegations were insufficient to establish notice. There were no allegations describing the inspections or patrols, and there was no allegation that an employee actually observed the dangerous condition. Magistrate Judge Goodman distinguished the situation in which a crewmember was standing next to the dangerous condition, and a reasonable fact finder could conclude that the employee should have known of the condition. Additionally, he noted the adequacy of the pleading that the condition existed for a “sufficient length of time” as “entirely conclusory.” Turning to the prior incidents, Magistrate Goodman reasoned that there was insufficient evidence that the incidents were similar to Armbrust’s accident, answering that the only common fact in the incidents was that they all occurred on the same island. Therefore, Magistrate Goodman recommended that the complaint be dismissed with leave to amend. Armbrust did not object, and Judge Williams adopted the recommendation.
Court lacked authority to cancel repairer’s lien on the vessel in exchange for substitute security on the vessel as no lien had been asserted in the lawsuit; Atlantic Oceanic LLC v. Deep Sea Solutions LLC, No. 6:23-cv-1002, 2025 U.S. Dist. LEXIS 74901 (W.D. La. Mar. 6, 2025) (Ayo), recommendation adopted, 2025 U.S. Dist. LEXIS 73806 (W.D. La. Apr. 17, 2025) (Summerhays).
Atlantic Oceanic, owner of the offshore supply vessel ATLANTIC OCEANIC, hired Deep Sea Solutions to overhaul the vessel’s #2 auxiliary engine. Atlantic Oceanic claims that the engine failed immediately after completion of the work because Deep Sea’s supervisor relied on an incorrect manual. Atlantic Oceanic refused to pay Deep Sea Solution’s invoice for the work and filed this suit in federal court in Louisiana, seeking damages from Deep Sea Solutions for the faulty repairs, including cost of repair, lost charter hire, and contractual liquidated damages. Deep Sea Solutions counterclaimed for breach of contract and included a demand on open account under Louisiana law, attaching a Notice of Lien in the amount of $97,731.15 recorded on the vessel. Atlantic Oceanic moved the court to terminate the lien in exchange for security offered by Atlantic, but Magistrate Judge Ayo recommended that the motion be denied. Atlantic Oceanic argued that the filing of the lien was prejudicial to its efforts to sell the vessel; however, Magistrate Judge Ayo reasoned that the lien had not been asserted in this case (merely attached) and that the counterclaim was an in personam claim for breach of contract and on an open account. Magistrate Judge Ayo explained that the cases supported substitution of security for the vessel in a case asserting an in rem claim, but no in rem claim had been asserted that gave the court authority to order substitution of security. Magistrate Judge Ayo added that when security is substituted for the vessel, the security stands in place of the vessel—it does not cancel the lien. Accordingly, Magistrate Judge Ayo recommended denial of the motion to cancel the lien in consideration of security. Atlantic Oceanic objected to the recommendation, but Judge Summerhays agreed with the recommendation and adopted it as his own.
Supplemental Rule F(9) allows a limitation action to be transferred to any district, and the Magistrate Judge agreed to transfer the action, for the convenience of the parties, to a district where the action could not have been originally filed; In re Trinity Tugs, LLC, No. 3:24-cv-327, 2025 U.S. Dist. LEXIS 41209 (S.D. Tex. Mar. 7, 2025) (Edison).
The towing vessel M/V BAYLOR J. TREGRE capsized and sank in the Gulf of America approximately 13.8 miles off the Texas coast. Four crewmembers were working on the vessel, and one deckhand, Richard Hebert, a resident of Terrebonne Parish, Louisiana, filed a lawsuit against the owner of the vessel, Trinity Tugs, in state court in Galveston County, Texas. Trinity Tugs then brought this limitation action in federal court in Galveston, Texas, and Hebert and another deckhand, Darien Kelley, a resident of Amite Louisiana, filed claims in the limitation action. Trinity Tugs then sought to transfer the limitation action to the United States District Court for the Eastern District of Louisiana, where Trinity Tugs is located and where all of the claimants’ treating physicians reside (except for emergency treatment after the accident). Kelly objected to the transfer on the ground that a transfer under Section 1404(a) requires that the suit could have been originally brought in the district to which the transfer is sought, and the limitation action could only have been originally brought in federal court in Texas where the suit was pending. However, Magistrate Judge Edison answered that Supplemental Rule F(9) allows a limitation action to be transferred for convenience to any district, not just a district where the limitation action could have initially been brought. Weighing the private and public interest factors, Judge Edison agreed to transfer the case to the Eastern District of Louisiana, explaining that the case involves a dispute between two Louisiana residents and a Louisiana company.
Judge dismissed in rem claims against vessel for lack of sufficient allegations that the vessel would be within the district; Mann v. S/V MIDNIGHT, No. 2:24-cv-885, 2025 U.S. Dist. LEXIS 42684 (D.S.C. Mar. 10, 2025) (Norton).
Dale Thompson manages and charters the vessel S/V MIDNIGHT, which is owned by his company, South By Southeast, LLC. Thompson, a resident of Bluffton, South Carolina, purchased the vessel while it was located in San Diego, California, and he hired Stephen D. Mann to oversea final preparations for the vessel and to deliver it from San Diego to Savannah, Georgia. Thompson agreed to pay Mann $1,500 a day for the services of Mann and his crew, but that amount was discounted for prompt payment. Thompson was originally going to sail with Mann, but he could not do so when the repairs delayed the sailing. Mann had to hire an additional crewmember at the rate of $250 per day, and he and his four crewmembers sailed the vessel to Savannah. Thompson did not pay the full amount sought by Mann, and Mann brought this action in federal court in South Carolina, asserting in rem claims against the vessel and in personam claims against Thompson and South By Southeast. The claims were for nonpayment of seamen’s wages, breach of maritime contract, maritime lien foreclosure, and quantum meruit/unjust enrichment. The vessel and owner moved to dismiss the in rem claims against the vessel for lack of maritime jurisdiction, and Mann moved to hold his in rem claims in abeyance while his in personam claims were adjudicated. Judge Norton noted that the vessel had not been arrested (and the court could not do so) because the vessel was moored in Savannah. Mann argued that the court had discretion to hold the in rem claims in abeyance so that he could arrest the vessel when it entered South Carolina waters; however, Judge Norton found the allegation that the vessel will be within the district during the pendency of the action was too vague and conclusory to warrant the retention of in rem jurisdiction. Therefore, Judge Norton dismissed the in rem claims without prejudice and declined to hold the dismissal in abeyance.
Judge struck opinions on causation of seaman’s expert and granted summary judgment to the vessel owner in seaman’s suit seeking to recover for lung cancer from alleged exposure to asbestos on the defendants’ vessels; Keller v. ExxonMobil Oil Corp., No. 23-cv-1528, 2025 U.S. Dist. LEXIS 44043 (S.D.N.Y. Mar. 11, 2025) (Swain).
Scott K. Keller sailed for 40 years as a merchant cadet and merchant seamen on vessels, including ten years (1974 to 1984) on vessels owned by Mobil Oil (including work on the vessels while they were in shipyards). In March 2020, Keller was diagnosed with lung cancer, for which he underwent surgery. In 2023, Keller brought this suit with a single count under the Jones Act, alleging that Mobil was negligent for failing to warn Keller about the risks of asbestos and asbestos-containing products and for failing to provide a reasonably safe workplace in which the risks of asbestos contact were mitigated. Keller supported his claim with the opinions of Dr. Richard L. Kradin, a pulmonologist and pathologist who is board certified in internal medicine, anatomic pathology, and pulmonary medicine. Mobil moved to exclude Dr. Kradin’s opinions and for summary judgment in the absence of expert testimony on causation. Chief Judge Swain noted that Dr. Kradin found no evidence of relevant medical markers for an asbestos-related injury after reviewing Keller’s medical records (no pleural plaques or asbestos bodies were present in tissue samples). The only evidence relied upon by Dr. Kradin to establish exposure to asbestos was deposition testimony of Keller and two former Mobil employees, but they had no knowledge of asbestos exposure. Instead, Dr. Kradin relied on scientific literature for the proposition that merchant mariners and workers in shipyards are at an increased risk for exposure to asbestos and development of asbestos-related disease. Dr. Kradin was not in a position to calculate the dose of any exposure, and Chief Judge Swain held that his opinion fell well short of Rule 702’s mandate that expert testimony be based on sufficient facts or data. As toxic tort claims under the Jones Act require expert testimony to establish causation where the injury (such as lung cancer) has multiple potential etiologies, Chief Judge Swain granted summary judgment to Mobil.
Grapevine Lake in North Texas has no interstate navigable access, and the federal court lacked admiralty jurisdiction over the limitation action brought by the owner of a vessel that exploded on the lake; In re Deno, No. 4:24-cv-1094, 2025 U.S. Dist. LEXIS 44638 (N.D. Tex. Mar. 12, 2025) (Pittman).
Doug Deno’s vessel M/V 1999 CARVER 406 AFT CABIN caught fire and exploded while docked at Silver Lake Marina on Grapevine Lake in North Texas. At least ten boats burned, and one person was injured. Deno filed this petition for limitation of liability in federal court in Texas. Several insurers filed answers and moved to dismiss the complaint for lack of subject matter jurisdiction, arguing that the incident did not occur on navigable waters. Judge Pittman noted that Grapevine Lake is an artificial reservoir located northwest of Dallas-Fort Worth Airport and was created by a dam on Denton Creek, which is located wholly within the State of Texas. The dam blocks access to navigable waters, and there was no evidence that anyone traveled interstate from the lake. Deno cited a consent agreement and final order from the Environmental Protection Agency’s Office of Enforcement and Compliance Assurance defining Grapevine Lake as a navigable water, but Judge Pittman answered that reliance on the order was misplaced as navigable waters within the Clean Water Act are broader than those for admiralty jurisdiction (assuming that the treatment of the lake under the CWA was still valid after the decision of the Supreme Court in Sackett (see June 2023 Update). Judge Pittman concluded: “Grapevine Lake is not navigable because it is landlocked, located entirely within the State of Texas, and primarily used for flood-control and recreation.” Therefore, he dismissed the case for lack of jurisdiction.
Limitation complaint that did not state the date of the incident was insufficient for the court to issue the Notice to Claimants and was dismissed for failure to state a claim; In re Pogue, No. 25-cv-8012, 2025 U.S. Dist. LEXIS 45573 (D. Ariz. Mar. 13, 2025) (Liburdi).
Michael John Pogue brought this action in Arizona federal court seeking to limit liability with respect to his 2019 Eliminator Speedster arising from a collision between his vessel and a 2022 Sea-Doo jet ski in the Colorado River. Pogue submitted a stipulation and letter of undertaking that were approved by Judge Liburdi, but Judge Liburdi declined to issue a Notice to Claimants because the complaint was insufficient to comply with Supplemental Rule F(2) for failing to include the date of the incident. Judge Liburdi dismissed the complaint without prejudice and ordered the filing of an amended complaint that complied with Rule F.
Passenger who slipped and fell on wet steps to the hot tub in the vessel’s spa failed to properly plead notice; Tremblay v. NCL (Bahamas) Ltd., No. 24-cv-24728, 2025 U.S. Dist. LEXIS 47345 (S.D. Fla. Mar. 13, 2025) (Moreno).
Linda Tremblay, a passenger on the NORWEGIAN PEARL, slipped and fell while walking on the steps of the hot tub/jacuzzi at the vessel’s spa facility because an excessive amount of water accumulated on the steps. Tremblay brought this suit against the cruise line in federal court in Florida, alleging failure to maintain the steps in a reasonably safe condition, failing to inspect the steps to determine the presence of accumulated water, failing to warn her of the existence of water on the steps, allowing a dangerous condition to exist notwithstanding prior similar incidents, and engaging in negligent care, maintenance and upkeep of the steps by allowing the accumulation of water. The cruise line moved to dismiss the complaint, and Tremblay responded that the cruise line had actual or constructive knowledge of the dangerous condition because it was created by improper inspection, cleaning, and maintenance, because of the length of time the condition existed, because the nature of the condition was apparent to any of the crew, because the steps can become dangerous when exposed to water and must be regularly inspected and maintained, and because the cause of the condition was repetitive, continuous, and recurring with regularity (as demonstrated by three prior incidents). Judge Moreno rejected all of the arguments made by Tremblay (except the prior incidents) because she did not provide any evidence of the period of time the defective condition existed. Therefore, Judge Moreno looked only to the prior incidents to determine whether there was constructive notice. Judge Moreno did not find sufficient similarity in the incidents as none took place on a wet staircase (let alone stairs leading to a hot tub) (and none took place on the NORWEGIAN PEARL). Judge Moreno added that Tremblay did not explain (in the context of her case or the cases she cited) how long the water was present, where it came from, whether any employee was aware of the water, or whether the surfaces on which she and the other plaintiffs slipped were the same. Judge Moreno granted Tremblay leave to amend, and he advised that she “should include any allegations that Defendant had actual notice, or that the surface was dangerous for a sufficient period of time to invite corrective measures, or she should include evidence of substantially similar incidents in which similar conditions surrounding steps of hot tubs or jacuzzies caused prior accidents.”
Amendment to passenger’s complaint (to add a new cause of action against the cruise line) that was filed after the running of the statute of limitations was not time barred because the passenger originally sought leave before the deadline passed but the case was stayed while the passenger sought medical treatment; Brewton v. Carnival Corp., No. 23-cv-23785, 2025 U.S. Dist. LEXIS 48264 (S.D. Fla. Mar. 13, 2025) (Moreno).
Adeia Brewton was a passenger on the CARNIVAL SUNRISE. She was injured during the Jungle ATV & Secret Blue Hold Adventure excursion at Yaaman Adventure Park in Ocho Rios, Jamaica when her ATV flipped over onto her leg (after striking rocks underneath a puddle of muddy water). She brought this suit against the cruise line in federal court in Florida, asserting five counts, and the cruise line moved to dismiss four of the counts. The parties agreed that maritime law applied to the ATV accident during the excursion in Jamaica, and Judge Moreno applied maritime law in considering the motion to dismiss [was the puddle a navigable waterway?]. Brewton claimed that she was not warned about how to safely operate the ATV, that she was not warned about deep muddy puddles with hidden rocks that could flip the ATV, and that the ATV was poorly maintained so that she could not maintain control. Judge Moreno noted that Brewton had to allege notice for the counts involving negligent retention and negligent failure to maintain. He held that the allegations that the cruise line had representatives take the excursion and perform yearly inspections were sufficient to establish actual notice. Additionally, Judge Moreno held that the allegation that knowledge should have been acquired during the time when the cruise line performed its initial approval and subsequent yearly inspections was sufficient to plead constructive notice. Turning to the pleading of negligent misrepresentation, Judge Moreno noted that the count had to satisfy the higher pleading standard of Rule 9(b), requiring allegations of precise statements plus the time and place of the statement, the person responsible for the statement, and the manner in which the plaintiff was misled. The promise of a safe and reliable excursion in this case was not sufficient to meet the heightened pleading standard, and Judge Moreno dismissed that count. With respect to the count alleging a joint venture, the cruise line cited the terms of the Tour Operator Agreement that expressly denied a joint venture between the parties and provided that the excursion operator would be treated as an independent contractor. Judge Moreno noted that Brewton did not attach the Tour Operator Agreement to the complaint, and he reviewed the allegations of the complaint that the cruise line sponsored and marketed the excursion, collected the money for the excursion, shared the money, and shared the losses. These allegations were sufficient to allege a joint venture, and Judge Moreno declined to dismiss the joint venture count. See April 2024 Update
After taking the deposition of the cruise line’s doctor, Brewton filed a motion for leave to amend her complaint on July 18, 2024 to add three new causes of action involving her medical treatment. The cruise line did not oppose the amendment, but Brewton moved to stay the case so that she could undergo medical treatment. Judge Moreno denied the motion for leave but granted Brewton leave to file the motion for leave after her treatment was completed. Brewton was ready to proceed on September 26, 2024, and the court allowed the amended complaint, which was filed on December 13, 2024. The cruise line moved to dismiss the claim in the amended pleading for vicarious liability for the negligence of the medical staff as it was filed outside the statute of limitations. Although the filing deadline prescribed by the court was outside the limitation period, the court had authorized the filing, and the court stated in its order staying the case that the order would not prejudice the rights of the parties to the litigation. As the court would have allowed the amendment prior to the expiration of the statute of limitation but declined to grant it so that Brewton could obtain medical treatment, Judge Moreno held that it would prejudice Brewton if he did not hold the amendment was timely, in contravention of the provision in his stay order. Therefore, Judge Moreno declined to dismiss the vicarious liability count.
Errors and omissions clause in cargo policy did not afford coverage for damage to shipment of cargo that was not covered under a marine cargo insurance policy; Mainfreight, Inc. v. Certain Underwriters at Lloyds, No. 18-cv-9210, 2025 U.S. Dist. LEXIS 57899 (C.D. Cal. Mar. 13, 2025) (Kronstadt).
Mainfreight, which arranges for transportation of computer server racks for its customers, provided for transportation of server racks from San Jose, California to France for its customer Blizzard Entertainment (delivered on June 21, 2017). Blizzard Entertainment made a claim against Mainfreight for damage to the cargo, and Mainfreight sought coverage from Lloyds pursuant to a marine cargo insurance policy and brought this suit against Lloyds in state court in Los Angeles County, California (claims for breach of contract as well as extracontractual claims). Lloyds removed the suit to California federal court based on diversity, and Lloyds moved for summary judgment, noting that the express terms of the policy did not cover shipments of server racks from locations in the United States to ones in Europe. After the incident, Lloyds sold Mainfreight an endorsement covering shipments of server racks from locations in the United States to locations in the United States or Europe. Mainfreight argued that the loss was covered by the errors and omissions clause of the policy that provided: “This insurance is not to be prejudiced by any unintentional or inadvertent omission, error, incorrect valuation or incorrect description of the interest, risk, vessel, or voyage made by the Assured, provided notice is given to the Underwriters as soon as is practicable on discovery of any such error or omission and deficiency of premium, if any, made good.” Mainfreight argued that the clause applied because it failed to purchase an endorsement covering the cargo due to an error in reporting the cargo to the underwriters. Judge Kronstadt disagreed, reasoning that the clause refers to errors or omissions that prejudice the insurance. As the scope of the coverage in the policy was anywhere in the United States to anywhere in the United States, Judge Kronstadt held that an endorsement that covered a shipment to Europe would have prejudiced the policy by including coverage for risks outside the scope of the policy (Judge Kronstadt also held that Mainfreight had not submitted admissible and relevant evidence that it sought an amendment). Accordingly, Judge Kronstadt granted summary judgment on the contract claim and, as no benefits were owed under the policy, he also granted summary judgment on the extracontractual claims.
Logistics provider that settled with the owner of stolen cargo was permitted to bring a counterclaim seeking recoupment based on indemnity or contribution against the inland carrier (which brought the suit against the logistics provider to recover unpaid freight), despite the fact that COGSA’s one-year limitation had run (applicable by the Clause Paramount); Evans Delivery Co. v. GFA Alabama, Inc., No. 1:23-cv-5798, 2025 U.S. Dist. LEXIS 46558 (N.D. Ga. Mar. 14, 2025) (Calvert).
This litigation involves the shipment of three containers from Shinhang (Busan), Korea to Savannah, Georgia and then to McDonough, Georgia. The Sea Waybills contained a Clause Paramount incorporating the Carriage of Goods by Sea Act throughout the carriage. Logistics provider GFA Alabama, which assists customers in making transportation arrangements, engaged Z Intermodal, a division of Evans Delivery, a motor carrier, to provide inland transportation, but GFA Alabama did not pay the freight charges because the containers were stolen in Garden City, Georgia. Evans Delivery brought this suit against GFA Alabama in federal court in Georgia, seeking to recover the unpaid freight, and GFA Alabama filed a counterclaim, seeking to offset or recoup the amount it paid to the owner of the cargo for the theft of the cargo. Evans Delivery moved to dismiss the counterclaim and for summary judgment on its freight claim, and Judge Calvert noted that COGSA, which had been extended to the land transportation, superseded other laws. Evans Delivery argued that the counterclaim for the theft of the cargo was filed more than one year after the loss; however, Judge Calvert held that GFA Alabama could still raise the COGSA claim by way of a defense, even after the statute had run. Additionally, Judge Calvert cited the decision of the en banc Fifth Circuit in the Hercules case, in which the court held that indemnity claims arising from damage/loss covered by COGSA are not subject to the one-year limitation period. Therefore, the counterclaim was not time-barred. Evans Delivery next argued that the Sea Waybills provided that freight was owed without any counterclaim or set-off and that the customer may not withhold payment due to alleged errors in billing or because of any other dispute with Evans Delivery. Judge Calvert rejected the argument, concluding that these provisions did not “squarely address recoupment.” Finally, Evans Delivery argued that GFA Alabama could not bring a claim under COGSA because it did not hold title to the goods and was not the real party in interest. Judge Calvert disagreed, answering that “because GFA has paid the shipper of the goods for losses allegedly caused by Evans, it can likely raise its claims under the Bills of Lading under a contribution or indemnity theory.” Judge Calvert ordered additional briefing on whether the settlement was reasonable and whether the recoupment claim arose from the same bills of lading that covered the stolen goods.
Agreement between insured vessel owner and its insurer (after coverage litigation) that the policy was void ab initio did not prevent an injured passenger from seeking coverage on the policy; Great Lakes Insurance SE v. Williams, No. 1:23-cv-23556, 2025 U.S. Dist. LEXIS 47975 (S.D. Fla. Mar. 14, 2025) (Reid).
Lilly Williams was injured on a chartered boat operated by Baywatch Boat Rentals Tours & Charters, d/b/a Captain Joe’s Boat Rentals Tours and Charters. Captain Joe’s was insured under a policy issued by Great Lakes Insurance. Williams brought a suit in Florida state court against Captain Joe’s, seeking to recover for her injuries, and Great Lakes brought an action in federal court in Florida against Captain Joe’s, seeking a declaration that it did not have a duty to defend or indemnify Captain Joe’s in connection with Williams’ injury. Great Lakes and Captain Joe’s entered into a settlement in which Great Lakes paid Captain Joe’s $150,000, and Captain Joe’s released Great Lakes from all liability under the policy (including bad faith), agreed that the policy would be void from its inception, agreed that the policy would not respond to the Williams claim, agreed that Captain Joe’s would not assign any rights against Great Lakes to anyone, and agreed that Captain Joe’s would defend and indemnify Great Lakes from any claims by Williams. Williams and Captain Joe’s settled the injury suit by entering into a $800,000 consent judgment, and Williams agreed not to execute against the assets of Captain Joe’s and to seek satisfaction of the judgment from the legal action against Great Lakes. Williams demanded that Great Lakes satisfy the consent judgment and filed a civil remedy notice accusing Great Lakes of acting in bad faith, and Great Lakes brought this action against Williams and Captain Joe’s, seeking a declaratory judgment that the policy was void ab initio and that Great Lakes did not commit bad faith. Williams moved to dismiss the complaint and argued that the settlement agreement, pursuant to which Captain Joe’s agreed that the policy was void, was not binding on her. Magistrate Judge Reid responded that the argument was not suitable for disposition on a motion to dismiss. The only relevant inquiry was whether the plaintiff is entitled to a declaration of rights, but Williams was asking the court to reach the merits. Magistrate Judge Reid found a viable case or controversy based on the consent judgment and Williams’ seeking to collect on the judgment from Great Lakes (together with her allegations of bad faith). Williams also argued that Great Lakes’ collection of premiums after it was on notice of the claim demonstrated that Great Lakes forfeited its right to rescind/void the policy. Noting that the allegations were beyond the four corners of the complaint, Magistrate Judge Reid held that the argument was improper for a motion to dismiss. Williams next argued that the retroactive attempt to cancel the policy violated the cancellation provisions of the policy, but Great Lakes replied that the parties did not agree to cancel the policy; they agreed that it was void ab initio. Reasoning that contract interpretation is typically inappropriate for a motion to dismiss, Magistrate Judge Reid declined to resolve the issue on a motion to dismiss. Finally, Williams argued that the counts seeking a declaratory judgment on the bad faith claims were premature, but Magistrate Judge Reid answered: “It is unclear how Williams can assert that there is no justiciable controversy regarding good faith while simultaneously initiating a [civil remedy notice], which is the prerequisite to filing a bad faith claim.” Therefore, Magistrate Judge Reid recommended denial of Williams’ motion to dismiss. See December 2024 Update.
The parties then brought their arguments in motions for summary judgment. Great Lakes asserted that, based on the settlement with Captain Joe’s, the policy was void ab initio, there was no policy on which Williams could collect, and Williams had no standing to challenge the settlement agreement. With respect to Williams’ standing, Great Lakes noted that in the suit between Great Lakes and Captain Joe’s, Captain Joe’s moved to dismiss the suit on the ground that it failed to join Williams as an indispensable party. Judge King denied the motion on the grounds that Williams was not a party to the policy and that she had not secured a judgment against Captain Joe’s. Magistrate Judge Reid did not believe that Judge King’s ruling with respect to whether Williams was indispensable at that time “has any weight on her standing to challenge the Policy now that she has a judgment.” Magistrate Judge Reid then disagreed with Great Lakes that the voiding of the policy in the initial coverage litigation precluded Williams’ standing to challenge her rights under the policy, answering that the consent judgment “itself gives Williams a right to seek legal action.” Therefore, Magistrate Judge Reid granted summary judgment to Williams that she had standing to contest her rights under the policy. Magistrate Judge Reid then addressed the defenses to the policy asserted by Great Lakes. The policy required notice within 30 days, and Captain Joe’s was late in reporting the claim by 20 days. As applicable New York law allows the insured to offer a valid excuse for the delay, Magistrate Judge Reid held that there was a fact question whether Captain Joe’s had a reasonable belief that there was no liability. Great Lakes also argued that the policy was void, based on uberrimae fidei, for material misrepresentations on the violations/suspensions of the named operators and the intended use and operation of the vessels. Williams contested the materiality of the violations, and Magistrate Judge Reid held that there were fact questions to be resolved that prevented summary judgment. Magistrate Judge Reid did grant summary judgment to Great Lakes on the extracontractual claims, however, because the consent judgment of $800,000 was within the policy limit of $1 million. Magistrate Judge Reid also agreed with Great Lakes that Captain Joe’s breached the non-assignment clause of its settlement agreement with Great Lakes by assigning its claims against Great Lakes to Williams. However, she noted that Williams’ damages against Great Lakes flowed from the consent judgment and that the issue of whether Williams was entitled to coverage under the policy had not been decided. Finally, Magistrate Judge Reid recommended that Great Lakes was entitled to indemnity from Captain Joe’s based on the indemnity provision in the settlement agreement with Great Lakes.
From the state courts
Court of appeals reversed jury verdict in favor of seaman injured in a fight at a motel, concluding that the seaman was not in the course of employment or in the service of the ship; Great Lakes Dredge & Dock Co. v. Clark, No. 14-23-00400-CV, 2025 Tex. App. LEXIS 1125 (Tex. App.–Houston [14th Dist.] Feb. 25, 2025) (Antú).
Great Lakes Dredge was contracted by the Army Corps of Engineers to dredge a waterway near Matagorda, Texas in 2020. Great Lakes engaged crews to work 12-hour shifts on hitches of 4 weeks on/2 weeks off. During their time off during a hitch, the crewmembers remained near the worksite. Great Lakes did not require that the crew stay at a specific place, but it recommended the Express Inn in Bay City, Texas, about 20 miles from the worksite (and assisted the crew in arranging accommodations. Three of the workers, Joshua Clark, a dayshift engineer, and Alex Nichols and Justin Bouvier, dayshift boatmen, elected to stay at the Express Inn. On December 15 and 18, 2020, there were altercations and a fight involving Clark and Nichols but there were no injuries. However, on the evening of December 19, Clark and Nichols were involved in a fight at the Express Inn, and Bouvier joined in the fight. Clark was injured, and Nichols resigned. Bouvier and Clark were terminated. Clark brought suit against Great Lakes in the district court of Harris County, Texas, asserting claims for negligence under the Jones Act and unseaworthiness and maintenance and cure under the general maritime law. The case was tried to a jury, which found that the injury occurred in the course of Clark’s employment/in the service of a vessel, that Great Lakes and Clark were both negligent (75% Great Lakes, 25% Clark), that the DREDGE SANDPIPER was unseaworthy and the unseaworthiness was a proximate cause of the injury, that Great Lakes owed maintenance and cure but was entitled to $0 for maintenance and cure, and that Great Lakes’ failure to pay maintenance and cure was unreasonable for which it owed $1.8 million. Judge Hall signed a final judgment awarding Clark approximately $3.5 million. On appeal, Great Lakes challenged the sufficiency of the evidence to support the jury’s finding that Clark was acting within the course and scope of his employment or service of the ship at the time he was injured in the fight. Writing for the Court of Appeals, Justice Antú reasoned that the evidence did not support a finding that Clark’s actions at the hotel were related to his job, although the fight did arise from tensions that emanated from the job. She added that Great Lakes was not able to restrict the movement of the employees while they were off duty and that Clark was not answerable to the call of duty at the time of his injury. Clark was not being compensated for the time that he was not working, and he was not performing work or acting at the direction of Great Lakes. Concluding that the verdict did not support the conclusion that Clark was acting in the course of employment or in the service of the ship, Justice Antú reversed the judgment and rendered a take-nothing judgment in favor of Great Lakes.
Kenneth G. Engerrand
President, Brown Sims, P.C.
Houston 1990 Post Oak Blvd Suite 1800 Houston, TX 77056 O 713.629.1580
New Orleans 365 Canal Street Suite 2900 New Orleans, LA 70130 O 504.569.1007
Gulfport 1110 Cowan Road Suite B #214 Gulfport, MS 39507 O 228.867.8711
Miami 2801 SW 149th Ave Suite 120 Miramar, FL 33027 O 305.274.5507
Quotes:
From the Joint Notice of Appeal (Doc. 30) filed on March 10, 2025 by Lee Ferguson (pro se) and Perry Sandberg (pro se), from the Order issued by Judge Whitehead in Ferguson v. M/V THE PORN STAR, No. 2:23-cv-1338, 2025 U.S. Dist. LEXIS 22597 (W.D. Wash. Feb. 7, 2025) that was summarized in the April 2025 Update:
The main issues to be resolved at the appellate level all derive from this: Does the Honorable Jamal N. Whitehead, United States District Court, Judge, honestly believe that the Appellants are so stupid, that they fail to notice that the acts taken including the acts by omission where one has a duty to act, amount to the felony restraint of the Appellants constitutional rights or liberties?
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. . . it is more than likely Appellants don’t stand a snowballs chance by the D.C.’s use of guerilla warfare tactics.
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There are many more but Appellants will not be able to sustain suits where they fight not a named party, but the arbiter instead that has us now figuring out what the procedure is to fight Harvey the Rabbit. They enter the ring now with both arms tied behind their back and blindfolded.
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. . . Appellants pray for relief that the Honorable Jamal N. Whitehead respectfully and quietly retire voluntarily with full Honors bestowed upon him thanking him for service and sacrifices to his country by The United States of America or resign his Judgeship voluntarily . . . .
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© Kenneth G. Engerrand, April 30, 2025; redistribution permitted with proper attribution.
