Void v. Voidable: The Effect of The Breach of The Duty of Utmost Good Faith in Marine Insurance and Its Future in Light of The Uk Insurance Act 2015

Vol. 14, No.
1 First Quarter 2016

Joshua S. Force, Editor-in-Chief
Robert J. Zapf, Managing Editor
E-DISCOVERY, FACEBOOK
SHENANIGANS, AND FRAUD:
THE CROWE V. MARQUETTE
TRANSPORTATION CASE
Inside This Issue

E-DISCOVERY, FACEBOOK SHENANIGANS,
AND FRAUD: THE CROWE V. MARQUETTE
TRANSPORTATION CASE
By Marissa M. Henderson ................................... 1
MANAGING EDITORS INTRODUCTORY NOTE

JANUARY 2016
Robert J. Zapf ...................................................... 3
I NTRODUCTION TO
CONVENTION, 2006
THE
M ARITIME LABOUR
By Douglas B. Stevenson .................................. 13
RECENT DEVELOPMENTS
CURE
IN
MAINTENANCE
AND
By Aaron B. Greenbaum, Esq. ......................... 22
VOID V. VOIDABLE: THE EFFECT OF THE BREACH

OF THE D UTY OF U TMOST G OOD F AITH IN
MARINE INSURANCE AND ITS FUTURE IN LIGHT
OF THE UK INSURANCE ACT 2015
By Alberto J. Castan~er ....................................... 29
WINDOW ON WASHINGTON HAVANA:

DAY DREAMING?
By Bryant E. Gardner ........................................ 34
RECENT DEVELOPMENTS ................ 39

CHURCHILL GOES TO WAR, Winstons Wartime
Journeys, Brian Lavery, 374 pp., plus
Photos, Diagrams, Notes, Bibliography and
Index Naval Institute Press, Annapolis,
2007.
By F. L. Wiswall, Jr. ......................................... 53
By Marissa M. Henderson
INTRODUCTION
Social media is everywhereFacebook, Twitter,
LinkedIn, Instagram, Pinterest, Snapchat, Periscope,1
the list is seemingly ever-growing. The Millennial
generation, especially, post, text, and message on
multiple platforms as their preferred means of communication. But social medias impact goes beyond
personal lives. It impacts the practice and business of
law and lawsuits. This article examines how social
media can impact legal cases, especially maritime
personal injury actions. This article will use one recent
and particularly interesting case from New Orleans as a
case study.
Two things that this article will touch upon and that
should give readers food for thought in their practice
are: (1) the nuts and bolts of how to use discovery to
get at social media accounts, including overcoming
common objections; and (2) ethical ramifications, such
as whether there is an ethical duty to advise clients of
social media in litigation.
1
Periscope, owned by Twitter, Inc., is a hot new app
designed to let you see the world through someone elses
eyes. Users can post live video feed either to the public or to
an invited group, replayable for 24 hours. See I-Tunes App
store, Periscope app, available at https://itunes.apple.com/us/
app/periscope/id972909677?mt=8 (last visited 1/20/16).
(Continued on page 4)
14 Benedicts Maritime Bulletin
First Quarter 2016
EDITORIAL BOARD
Dr. Frank L. Wiswall, Jr.
Robert J. Zapf
Bruce A. King
Dr. James C. Kraska
Dr. Norman A. MartinezGutierrez
Francis X. Nolan, III
Anthony J. Pruzinsky
REPORTERS/
ASSOCIATE EDITORS
Lizabeth L. Burrell
Edward V. Cattell, Jr.
Matthew A. Marion
Marc Marling
Howard M. McCormack
Michael B. McCauley
Graydon S. Staring
JoAnne Zawitoski
COLUMNISTS
Bryant E. Gardner
EDITORIAL STAFF
James Codella
Practice Area Director
Cathy Seidenberg
Legal Editor
A NOTE ON CITATION:
The correct citation form for this publication is:
14 BENEDICTS MAR. BULL. [page #] (First Quarter 2016)
This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is
provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional
service. If legal or other expert assistance is required, the services of a competent professional should be sought.
From the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of
Publishers and Associations.
Copyright 2016 LexisNexis Matthew Bender. LexisNexis, the knowledge burst logo, and Michie are trademarks of Reed Elsevier Properties Inc.,
used under license. Matthew Bender is a registered trademark of Matthew Bender Properties.
First Quarter 2016
MANAGING EDITORS INTRODUCTORY NOTE JANUARY 2016

In this issue, we publish several articles that were initially presented at the 2015 Fall Meeting of The
Maritime Law Association in Bermuda. The meeting provided the venue for a substantial number of
CLE presentations and many and more are worth bringing to your attention if you were not fortunate
enough to be present.
Our first article is a very informative and enjoyable presentation on e-discovery, a topic about which
many of us need to know more. Marissa Henderson discusses what to do, and perhaps more importantly what not to do, when presented with discovery demands seeking social media information, and
provides very useful tips on initiating your own e-discovery demands. It appears that privacy is a
fiction in this brave new world. . .
We follow with a very useful discussion by Doug Stevens on the Maritime Labour Convention 2006
relating to seamans rights and the duties owed by owners and operators to their crew, without whom
maritime commerce would be impossible.
Keeping with the theme of seamens rights, our next article by Aaron Greenbaum brings us up to date
on recent decisions addressing maintenance and cure obligations owed to those seamen.
We follow with an article by Alberto Castaner on marine insurance and the doctrine of uberrimae
fidei does it still apply, if so, and what are the consequences of its application in a given case?
Bryant Gardner gives us a presentation on the new relations with Cuba and the opening of the door to
our close Caribbean neighbor by the Obama Administration.
Next is our regular Recent Developments case reports, and we conclude with an extremely detailed
and excellent review by Dr. Frank L. Wiswall of CHURCHILL GOES TO WAR, Winstons Wartime
Journeys. The author, Brian Lavery, a British Naval historian, provides a full account of Winstons
many wartime travels, necessitated by the exigencies of the war and post-war strategies. The book
provides another insightful look into one of the most fascinating characters of the 20th Century.
As always, we hope you find this edition interesting and informative, and ask you to consider
contributing an article or note for publication to educate, enlighten, and entertain us.
Robert J. Zapf
First Quarter 2016
E-Discovery, Facebook Shenanigans, and Fraud:The Crowe v.

Marquette Transportation Case
By Marissa M. Henderson
(Continued from page 1)
THE CROWE CASE: WHAT NOT TO DO
2
Crowe v. Marquette Transportation started out as a

typical seamans case for negligence under the Jones
Act, with maintenance and cure and unseaworthiness
claims also asserted. The plaintiff, Brannon Crowe, a
Millennial-generation tug deckhand, claimed he
injured his knee while moving a heavy pump off a
tugboat, the LADY GUADALUPE, to the dock while
standing on the vessels bull rail. His liability theories
essentially relied on his claim non-skid material was
not adequately applied to the bull rail. He filed suit in
May 2014 in the United States District Court for the
Eastern District of Louisiana against his employer,
Marquette Transportation Company Gulf-Inland, LLC
(Marquette).
Early in discovery, Marquette served a broad request for
production on Crowe, seeking an unredacted, unedited
digital copy of your entire Facebook page since he
began work with Marquette. The discovery request
even included instructions on how to get it, stating Facebook provides instructions and a simple way to
download a copy of your Facebook data. Crowe
objected to this request as overly broad, unduly burdensome, irrelevant, not reasonably calculated to lead to the
discovery of admissible evidencethe usual objections
to social media discovery requests. Crowes answer to
this request also stated: [P]laintiff does not presently
have a Facebook account.
Marquette did not initially push the written discovery
request at that time, though it did ask Crowe about his
Facebook use in deposition. Crowe testified he had
recently eliminated his Facebook account. Marquette
then moved to compel its Facebook page discovery
request.3 In support of its motion, Marquette submitted
a mobile phones screen shot of what appears to be a
Facebook text message exchange between another deck-
2
Crowe v. Marquette Transp. Co. Gulf-Inland, LLC, No.
2:14-cv-1130 (E.D. La. filed May 19, 2014) (Englehardt, C.J.).
3

2:14-cv-1130, Document 16 (E.D. La. filed December 18,
2014).
hand on the LADY GUADALUPE, Robert Falsev, and

someone with the user name CroWe. 4 In this
exchange, CroWe stated he got hurt before [he] got
on the boat and asked Falsev to say the captain told
them to put nonskid on the bulwarks. Crowe opposed
the motion to compel, arguing Marquette was on a
fishing expedition; alternatively, he sought an in
camera review of his Facebook account. Crowe also
claimed in briefing his Facebook account had been
hacked, and he did not have a capital w in his
last name. In the same motion, Marquette also moved
to compel a forensic exam of Crowes phone. The court
ordered Crowe to provide his entire Facebook history
for an in camera inspection.
Crowes lawyers submitted some 4,000 pages of
Crowes Facebook account history. After conducting
just a cursory in camera review, Magistrate Judge
Michael North issued an order to produce the entire
4,000 pages to the defense. Judge Norths sternlyworded order noted it was patently clear from even a
cursory review that this information should have been
produced as part of Crowes original response.5 The
judge was not amused to learn Crowes Facebook
account was deactivated just four days after the
written discovery request for his Facebook account
was served. Clearly, one of the reasons the judge
ordered production of the Facebook account was
because Crowe had rather obviously (and clumsily)
tried to hide it from the opposing side. Other facts
illustrating Crowes deception and games with the
lawsuitseemed to trouble the court in its order. For
example, Judge North noted Crowes Facebook account
was reactivated just a week before the account data was
required to be produced to the court, and it was done
from the same iPhone Crowe had regularly used to
access Facebook previously. It certainly appeared that
the plaintiff was playing games with the discovery
process.
The screenshot of the Facebook message exchange is in the

courts record at Document Number 16-3.
5
The order appears in the courts record at Document Number

32, filed on January 20, 2015.

Deactivation versus DeletionA Critical Distinction
on Facebook
In his order compelling production of the plaintiffs
entire Facebook record, Judge North was further
troubled by Crowes discovery answer that he did
not presently have a Facebook account. The judge
noted Crowe had only deactivated his account but had
not deleted it. The order then quotes from Facebooks
technical pages that explain the difference between
deactivation and deletion of an account. As the order
noted, deactivation makes a Facebook profile not
visible to other users, but all the content is retrievable
and can be reactivated at any time. Deactivation on
Facebook is akin to going off-line for a time. Crowe
went off-line as soon as his Facebook page became an
issue in his lawsuit. Ironically, Crowes attempt to keep
his social media account out of discovery was thwarted
by his own clumsy attempts to hide his account from the
litigation.
Court Orders Jailbreak of Plaintiffs Mobile Phone
Text, Text, and More Texts
The court further punished Crowe for playing discovery
games with his electronic communications. The same
order giving the defense full access to his Facebook
account allowed an intrusive forensic exam of
Crowes iPhone: a defense expert was allowed to
conduct a jailbreak of the phone to pull out all
deleted text messages. Typical for Millennials, when
Marquette reviewed the jailbreak data, it found thousands of Crowes texts and deleted texts. Crowe was a
prolific texter. Notably, Marquette believed it found
further evidence of Crowes fraud on the court. On the
Facebook text message app, Messenger,6 Marquette
found frequent texts between Crowe and fellow deckhand Falsev. However, before a certain date, there were
no messages at allcausing Marquette to accuse Crowe
of deleting all Falsevs texts before a certain date to hide
the texts in which he says he got hurt away from work
and asked Falsev to lie for him.
Interestingly, these facts reveal an interesting twist for
lawyers seeking deleted text messages in discovery
deleting text messages on the Facebook Messenger app
First Quarter 2016

does appear to make them irretrievable, but deleted text
messages sent through the mobile phone itself can be
recovered in a jailbreak of the phones internal software. However, for those litigants attempting fraud on
the court, deleting Facebook Messenger texts just
deletes them from one users account; recall that
Falsev could still retrieve Crowes messages from
Falsevs Facebook account. In other words, texts, like
other forms of digital communications, have a life of
their own and can surviveand be found in
discoveryfor much longer than the life of a lawsuit.
Though this point is perhaps something we have all
come to understand in the digital age, the Crowe case
illustrates the nuances of different communications
media and how they may play out in discovery battles.
Counterclaim for Fraud and Pretrial Motions for
E-Discovery Evidence
After uncovering what it believed was significant
evidence of the plaintiffs fraud on the court, Marquette
moved to file a counterclaim asserting, among other
things, fraud under the general maritime law and
damages under state law not in conflict with maritime
law. This was a highly unusual move by a Jones Act
defendant. Though many Jones Act employers would
like to claim fraud, there are rarely sufficient facts to
support a claim, and the law is murky as to the viability
of a fraud claim against a Jones Act seaman. An interesting battle ensuedthe magistrate judge denied
Marquette leave to file a counterclaim,7 but the district
judge set aside the order and granted leave to file the
counterclaim.8 Marquettes damage claims sought to
recover the hefty amounts it had paid for Crowes
medical care, which included surgery, and also to
recover payments directly to Crowe for seamans maintenance, in addition to its litigation expenses. Crowes
lawyers then moved to dismiss the counterclaim,
arguing Marquette failed to state a claim.9 Marquette

2:14-cv-1130, Document 54 (E.D. La. Mar. 3, 2015) (North,
M.J.).
6
Messenger is the popular mobile app that links to Facebook

accounts, so that users can text message and even video call
their Facebook friends. See I-Tunes App store, Messenger by
Facebook, Inc, available at https://itunes.apple.com/us/app/
messenger/id454638411?mt=8 (last visited 1/20/16).
8
2:14-cv-1130, Document 90 (E.D. La. May 8, 2015) (Engelhardt, C.J.).
9

2:14-cv-1130, Document 100 (E.D. La. filed July 31, 2015).

shot back with a concise statement of all the evidence
uncovered during discovery that supported and established its fraud allegations.10
There were several interesting pretrial motions
regarding the admissibility of many of Crowes phone
and Facebook text messages. Marquette wanted to
present hundreds of Crowes text messages as evidence
at trial, and it attached these to their motions. Reading
these text messages as attached to these motions as exhibits could make one frankly uncomfortable, as if one
were peering into a strangers deepest thoughts. Crowe
texted about his hopes and dreams, business ventures he
hoped to start in the Philippines, a friends drug and
criminal problems, often in a slang, vernacular style.
No subject was off limits with his friends. Crowe is a
typical Millennial who communicated electronically
about everything. Had he been having an affair or had
other private things to hide, lawyers on both sides, and
anyone with a PACER account willing to take the time
to pull court documents, would know all. In response,
Crowe sought to present his texts about his suffering and
economic woes.
Ultimately, the court ruled most of the texts and
Facebook messages submitted by both sides were
truly hearsay and/or self-serving evidence and were
therefore not admissible unless properly used for
impeachment. The court counseled the witnesses
should testify and there be a proper airing of evidence
through direct testimony.11
The parties went to trial entrenched in their positions: on
the one hand, Crowe was an injured seaman deserving
damages, on the other, he was a manipulating deckhand
using an off-work injury as a basis for lying about
getting hurt at work. The outcome turned on witness
credibility. Ultimately, surmising from the verdict, it
appears Crowe was credible enough to avoid being
found a fraud but the jury was otherwise not sympathetic
to his claims.
10
2:14-cv-1130, Document 101 (E.D. La. filed Aug. 10, 2015).
This brief makes for good reading as a detailed account of
Marquettes efforts to uncover fraud and the legal arguments
supporting the employers ability to claim fraud against a
Jones Act seaman.
11
2:14-cv-1130, Document 129 at p. 2 (E.D. La. Sept. 25,
2015) (Engelhardt, C.J.).
First Quarter 2016

The jury trial took place October 5 through 7, 2015. The
jury split the baby: it found Crowe was injured on the
tug, but Marquette was not negligent nor was the vessel
unseaworthy.12 Since the jury answered the first question, that Crowe was hurt on the vessel, in the
affirmative, the jury form did not require it to reach
the last questionswhether Crowe acted fraudulently.
In the end, both sides walked away with nothing.
Lessons from the Crowe Case
An important takeaway from the Crowe case is that we,
as lawyers, must have a basic understanding of how
social media works, and we should consider routine
education of clients that their social media accounts
and texts may be subject to discovery. Early counseling
with Crowe might have changed this case altogether
Crowe may have avoided electronic communications to
(allegedly) ask a witness to lie and there would have
been no smoking gun text message. It would have
come down to a standard credibility battle between
plaintiff and a fact witness, with no Facebook message
to lend credence to the witness story.
Another lesson from the Crowe case for lawyers is to
question clients more rigorously before answering in
written discovery that he or she has no Facebook
account. Deactivated is not deleted for Facebook
accounts. Crowe thought he was clever by deactivating
his account, because it meant no one searching for his
account would find it. However, he did not delete it, and
all 4,000 pages of his account were just lying in wait to
be reactivated and retrieved. A final lesson from this
case is that if a client does take down material on
social media that may be relevant, the lawyer should
advise the client to retain a copy or retain it in the
lawyers file. Had Crowe actually deleted his Facebook
account, he probably would have faced sanctions for
spoliation of evidence. Some of these attorney ethical
issues will be discussed in more detail below.
NUTS AND BOLTS TO SOCIAL MEDIA
DISCOVERY
Courts around the country have found social media data
to be discoverable. Below are common objections raised
to social media discoveryprivacy and relevancyand
strategies to overcome such objections. Also discussed
are practical tips to social media discovery.
12
The jurys detailed verdict form is in the courts record at

Document 152-6, filed on October 7, 2015.

Overcoming Common Objections
Privacy. The argument that social media information is
subject to privacy protections can generally be overcome, and there is precedent sprinkled across
jurisdictions.13 Essentially, the response is that information shared through social networking sites such as
Facebook or Twitter can be copied and disseminated
by others, possibly strangers depending on the individuals privacy settings, so any concept of privacy is
meaningless. As one New York state judge wrote, If
you post a tweet, just like you scream it out the window,
there is no reasonable expectation of privacy.14 In
2010, Facebooks Mark Zuckerberg discussed a new
social norm of sharing information online, and the
headlines ran, Privacy is dead on Facebook.15
Indeed, as early as 1999, Sun Microsystems CEO
Scott McNealy famously said to reporters, You have
zero privacy anyway. Get over it.16
First Quarter 2016

privacy settings, courts considering the issue generally
(though not universally) recognize that information
posted in social media is not truly private.17
Any privacy arguments will be balanced against the
need for the discovery. Hence, counsel must have a
factual predicate to obtain the discovery. For example,
in a personal injury case where the plaintiffs quality of
life post-accident is at issue, his photographs posted online prior to this accident and afterwards are arguably
relevant to the issue. In Nucci v. Target Corporation,18 a
Florida court in 2015 ordered production of all photographs on the plaintiffs social networking sites from
two years before the accident to date. The Nucci court
stated:
In a personal injury case where the plaintiff is
seeking intangible damages, the fact-finder is
required to examine the quality of the plaintiffs life before and after the accident to
determine the extent of the loss. From testimony alone, it is often difficult for the factfinder to grasp what a plaintiffs life was like
prior to an accident. It would take a great novelist, a Tolstoy, a Dickens, or a Hemingway, to
use words to summarize the totality of a prior
life. If a photograph is worth a thousand words,
there is no better portrayal of what an individuals life was like than those photographs the
individual has chosen to share through social
media before the occurrence of an accident
causing injury. Such photographs are the
equivalent of a day in the life slide show
produced by the plaintiff before the existence
of any motive to manipulate reality. The photographs sought here are thus powerfully
Facebooks privacy settings, if utilized, do not generally

provide much protection from disclosure in discovery.
Facebooks settings allow you to limit some data to your
friends, but you still cannot control what your
friends decide to share or post. Regardless of
13
See, e.g., Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D.

566, 570 (C.D. Ca. 2012) (Generally, [social media] content
is neither privileged nor protected by any right of privacy.)
(citation omitted); Giacchetto v. Patchogue-Medford Union
Free School Dist., 293 F.R.D. 112 n.1 (E.D.N.Y. 2013)
(rejecting arguments that a partys interest in privacy of their
Facebook account requires a showing that the account actually
contains information that would undermine the partys claims
before the account data is discoverable because the Federal
Rules do not require a party to prove the existence of relevant
material before requesting it). Interestingly, in the criminal,
Fourth Amendment context, the Supreme Court has
assumed, but not held as such, that a municipal employee
had a reasonable expectation of privacy in his text messages
on a city-provided pager. City of Ontario, California v. Quon,
560 U.S. 746, 759 (2010).
17
Facebook did somewhat of an about-face in late 2014 when

it added new and various privacy settings. However, speaking
only as a casual user of Facebook, the privacy settings are
confusing and require some digging to locate and activate.
See cf., U.S. v. Meregildo, 883 F. Supp. 2d 523, 525-26

(S.D.N.Y. 2012) (finding, in Fourth Amendment context,
where defendant used privacy settings that allowed only his
friends on Facebook to see postings, he had no justifiable
expectation that his friends would keep his profile private);
see also A.D. v. C.A., 16 N.Y.S.3d 126, 128 (N.Y. Sup. Ct.
2015) (A persons use of privacy settings on social media,
such as Facebook, restricting the general publics access to
private postings does not, in and of itself, shield the information from disclosure if portions of the material are material and
relevant to the issues of the action.).
16
18
14
People v. Harris, 945 N.Y.S.2d 590, 595 (Crim. Ct. New

York County 2012).
15
Wikipedia, Scott McNealy Article, https://en.wikipe

dia.org/wiki/Scott_McNealy (last visited Sept. 18, 2015).
Nucci v. Target Corp., 162 So. 3d 146, 152-53 (Fla. Dist.

Ct. App. 2015).

relevant to the damage issues in the lawsuit.
The relevance of the photographs is enhanced,
because the post-accident surveillance videos
of Nucci suggest that her injury claims are
suspect and that she may not be an accurate
reporter of her pre-accident life or of the
quality of her life since then. The production
order is not overly broad under the circumstances, as it is limited to the two years prior
to the incident up to the present; the photographs sought are easily accessed and exist in
electronic form, so compliance with the order
is not onerous.19
Relevance. As noted above, courts do require a
threshold showing of relevance to allow social media
discovery, especially if the discovery request is
broad.20 In the Crowe case, counsel could show the
relevance of requested phone and Facebook data
because a witness had given them a smoking gun
Facebook message and claimed to have received other
damaging texts from plaintiff. In other cases, personal
injury claims alone provide some justification to get at
social media content. For example, in a recent Florida
case, Tyer v. Southwest Airlines,21 the federal court
ordered plaintiff to produce all post-injury photographs
of herself posted on social media, because they were
First Quarter 2016

relevant to her physical condition, which she placed at
issue by alleging personal injury damages.22
Counsel may have to lay a foundation for social media
discovery, however, by establishing the partys use of
social media, as noted below in the practitioner tip
section. Ultimately, if the discovery request is
adequately tailored to the relevance argument, a relevancy objection should be overruled.
Practice Tips for Social Media Discovery23
1. Take a Snapshot of the Partys Public Profile
Counselat least defense counsel in a personal injury
mattershould conduct a search of the internet for
plaintiffs social media presence early in case. Counsel
should print or save the public information, which will
help identify if the plaintiff later removes some content,
such as photographs. Plaintiffs counsel, too, should
consider counseling their clients on how social media
may be discoverable and used in litigation (as discussed
below in further detail) and should also find out early in
the court of representation what his or her client has put
out there in social media.
2. Ask a Simple Interrogatory to Identify Accounts
and User Name
Early in discovery, ask a single interrogatory for identification of the partys social media accountsbut just
their existence and the username. Early discovery
requests are not the time to start a discovery battle by
seeking full access to accounts or passwords; the goal is
22
19
Nucci v. Target Corp., 162 So. 3d 146, 152 (Fla. Dist. Ct.
App. 2015).
20
See, e.g., Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D.
566, 570 (C.D. Cal. 2012) ([S]everal courts have found that
even though certain [social media] content may be available
for public view, the Federal Rules do not grant a requesting
party a generalized right to rummage at will through information that [the responding party] has limited from public view
but instead require a threshold showing that the requested
information is reasonably calculated to lead to the discovery
of admissible evidence.) (citation omitted); Melissa G v.
North Babylon Union Free School Dist., 48 Misc. 3d 389,
391-92, 6 N.Y.S.3d 445 (N.Y. Sup. Ct. 2015) (finding Facebook photographs showing plaintiff engaging in recreational
activities are probative and relevant to her claim for loss of
enjoyment of life and requiring she preserve all Facebook data
and plaintiffs counsel to review all Facebook account data and
produce relevant material).
21
Tyer v. Southwest Airlines Co. f/k/a Airtran Airways, Inc.,
No. 14-cv-62899, 2015 U.S. Dist. LEXIS 97508, *5 (S.D. Fla.
July 27, 2015).
See also Farley v. Callais & Sons LLC, No. 14-2550, 2015
U.S. Dist. LEXIS 104533, *11-14 (E.D. La. Aug. 10, 2015)
(denying carte blanche Facebook discovery of plaintiffs
account but allowing certain relevant categories of Facebook
discovery); Giacchetto v. Patchogue-Medford Union Free
School Dist., 293 F.R.D. 112, 115-16 (E.D.N.Y. 2013)
(denying full access to plaintiffs social networking postings
but ordering production of any social networking postings
referencing her emotional distress claims from the underlying
incident and also postings that refer to an alternative potential
stressor because she had opened the door to discovery on
other sources or her emotional distress); cf. Newill v. Campbell
Transp. Co., Inc., 96 Fed. R. Evid. Serv. 527 (W.D. Pa. 2015)
(finding plaintiffs Facebook posts indicating he had physical
capabilities inconsistent with his claimed injuries to be relevant and admissible at trial, notwithstanding some
embarrassment).
23
These tips were drawn largely from the informative and

detailed article by attorney Christopher B. Hopkins, Ten
Steps to Obtain Facebook Discovery in Florida, Trial Advocate Quarterly (Spring 2015). The article contains detailed case
discussions under Florida law and is highly recommended
reading on this topic.

to learn early on which platforms a party uses and what
information he or she has openly available. The user
name is important, since an internet search may not
locate accounts if a pseudonym is used. If any new
accounts are identified, go back to step one and take a
snapshot of publicly-available content on those social
media accounts.
A sample interrogatory, unlikely to draw credible objection, is:
Identify your accounts on Facebook, Twitter,
Instagram, LinkedIn, and Periscope, and your
username on each account.
3. Ask Basic Social Media Questions in Deposition
Consider adding to your standard deposition outline a
series of questions to get basic information about
whether and how the party uses social media. Counsel
should be trying to build relevance arguments to obtain
more intrusive social media discovery, or to eliminate
the issue altogether if he or she does not use social media
(and you believe him or her!). On the flip side, particularly on the plaintiffs side, counsel should prepare
clients to answer such questions and to not appear defensive or hedge answers. In other words, counsel should
advise plaintiffs not to do as Crowe did in the Crowe v.
Marquette Transportation case.
Questions to ask to build a case for further social media
discovery:

Confirm accounts and user names identified in

written discovery.
How often and which platforms are used; number

of friends or followers.
What type of information is posted or shared: Kids

pictures? Pictures of yourself doing activities?
Physical/emotional state?
Any discussion of the lawsuit on social media,

including the facts, the underlying accident,
damages, or the dispute.
Any altered or deleted content since the accident or

dispute.
4. Develop a Reason to Obtain Social Media

Discovery
Social media discovery follows the same basic rules
of any other type of discoveryit must be relevant
First Quarter 2016

and, under the revised Federal Civil Rule 26(b)(1),
proportional to the needs of the case. This proportionality requirement is new to Rule 26 as of
December 1, 2015, so it remains to be seen how or if
this clause will change the scope of discovery. Regardless, counsel wishing to obtain social media information
in discovery should expect to be required to state some
credible facts, made in good faith, that make it likely that
relevant material will be found on the partys social
media accounts. Counsels early investigation efforts
should gather such facts, if they exist. In the Crowe
case, defense counsel could point to an apparent text
message conversation in which the plaintiff told a
fellow employee he had been injured while fishing on
his own time and asked him to lie about facts to support
the plaintiffs case.
If defense counsel asked plaintiff the deposition questions above, he or she should be well positioned to build
on both the relevance argument and on identifying
targeted information for more intrusive discovery
requests. For example, if plaintiff claims she is unable
to perform her normal housework activities, and she
testified in deposition that she posts 3 or 4 times a day
and often includes her activities, counsel has a reason to
ask for her Facebook status posts from the underlying
incident to the present. Arguably, counsel could request
pre-incident Facebook status posts because they would
reveal plaintiffs pre-incident activities and allow
comparison to post-accident activities.
5. Make a Targeted Request for Production
Identify the narrowest scope for an initial production
request that should generate useful results. Start with a
request that you have an articulable, case-specific reason
for seeking. For example, if counsel learned in deposition that the plaintiff posted pictures of herself both
before and after the accident (and her physical condition
is at issue), counsel can articulate a reason to request
photographs of plaintiff posted on social media for some
limited time before the incident and after, and possibly
only those photographs that depict the area of the body
at issue in the lawsuit. Remember, the more tailored the
request, the more likely a court will allow it. As the
Crowe case illustrates, it cannot hurt to include a brief
explanation of how to retrieve such data. However, by
all means, if counsel has an articulable reason for a
broad, intrusive discovery request, make it. For
example, in the Crowe case, defense counsels request
for production stated:

An unredacted, unedited digital copy of your
entire Facebook page from the onset of your
employment with Marquette until the present.
(This is a simple process specifically provide
under the General Settings page on Facebook. Just click on Download a copy of your
Facebook data and follow the instructions.24
Defense counsel in Crowe already had at least one
witness informing them that the plaintiff had texted
and sent Facebook messages regarding how he was
really hurt and what to say for the lawsuit, so as to
justify this broad request. However, for the typical
case without the smoking gun Facebook message to
justify full access to the account, it would be prudent
to conduct social media requests in more justifiable,
targeted bites. At a minimum, the requested data
should be limited in timeframe. Should the requested
material reveal a justification for a more intrusive
social media discovery request, then counsel can make
another request: one bite at a time.
ETHICAL CONSIDERATIONS FOR PRACTICE
AND OTHER TAKEAWAYS FROM THE CROWE
CASE
The Crowe case gives us insight into how important
social media discovery can be to litigation and raises
lots of ethical questions for our practice. Some of
these are addressed below.
Do Lawyers Have a Duty to Educate Themselves
about Social Media: A Question of Lawyer
Competence?
Due to the growing use of social media in discovery, a
working knowledge of social media and technology is
ethically required for attorney competence in practice
areas in which social media discovery may play a role.
State bar associations are increasingly including discussion about social media knowledge and use in their
ethical guidelines, and some bar associations have
drafted specific guidelines to address social media. In
2013, the ABA Ethics 20/20 Commission added
Comment 8 to its Model Rule 1.1: Competence:
To maintain the requisite knowledge and skill,
a lawyer should keep abreast of changes in the
law and its practice, including the benefits and
risks associated with relevant technology,
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engage in continuing study and education
and comply with all continuing legal education
requirements to which the lawyer is subject.25
Many state bar associations have adopted this comment,
since the ABA Model Rules of Professional Conduct
serve as models for the ethics rules of most states.
Related to this question is whether there is a duty to
investigate the social media presence of an opposing
party. In particular, for defense counsel in a personal
injury matter, I would argue the answer is yes. While I
am not aware of any findings of attorney malpractice for
failure to inspect a plaintiffs social media presence, it is
certainly foreseeable. It is advisable to investigate what
is publicly available about the plaintiff on-line, and, as
noted above, to take a snapshot of any social media
account data to use as a baseline for any further social
media discovery.
Is there a Duty to Educate Your Clients about Social
Media?
Yes, depending on the case and the client. It may be
prudent to educate your clients, whether plaintiffs or
defendants, about social media use and potential pitfalls
in litigation. Some lawyers who are particularly sensitive to these e-discovery issues put educational warning
language in their initial correspondence to clients, so
their clients are aware of how social media may
impact their case. In particular, when taking on a plaintiffs personal injury matter, counsel should warn their
clients that information they post to social media, or text
to friends, could wind up as evidence against them in a
lawsuit.
The North Carolina State Bar recently responded to a
question of a lawyers duty to advise clients about social
media, stating:
If the clients postings could be relevant and
material to the clients legal matter, competent
representation includes advising the client of
the legal ramifications of existing postings,
future postings, and third party comments.26
25
American Bar Association, Comment on Rule 1.1,

available at http://www.americanbar.org/groups/professio
nal_responsibility/publications/model_rules_of_professio
nal_conduct/rule_1_1_competence/comment_on_rule_1_1.
html (last visited 1/20/16).
26
24
Crowe, Jan. 20, 2015 Order and Reasons (Document 32),

at 2.
North Carolina State Bar, 2014 Formal Ethics Opinion 5,

Opinion #1, available at http://www.ncbar.com/ethics/ethics.
asp?page=528 (last visited 1/20/16).
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How Do Counsel Ethically Advise Clients about Using

Social Media?
produce the account data, which showed he deleted 16

photos after the clean up instruction.
There are certainly ethical pitfalls. By simply telling

your client that their communications on any electronic
and social media platform may end up as evidence at
trial, a lawyer may end up with a client who engages in
spoliation and possibly even fraud.
2. Adding New Social Media Posts
1. Taking Down Posts

Generally, advising your client to delete negative social
media data will run afoul of ethical rules when there is a
duty to preserve such information. However, if the
lawyer preserves information taken down from a
clients social media or counsels his client to preserve
the data, he may comply with his states ethical rules.
The North Carolina State Bar Ethics Committee has
spoken on this point:
The New York State Bar is on the cutting edge of

addressing the thorny ethical issues surrounding social
media. Last June their Commercial and Federal Litigation Section issued Social Media Ethics Guidelines.29
These Social Media Guidelines are well-drafted, and
they address topics covered here and far beyond, such
as furnishing legal advice through social media. One
guideline of the Social Media Ethics Guidelines is particularly instructive here:
Guideline No. 5.B: Adding New Social Media
Content
A lawyer may advise a client with regard to
posting new content on a social media website
or profile, as long as the proposed content is
not known to be false by the lawyer. A lawyer
also may not direct or facilitate the clients
publishing of false or misleading information
that may be relevant to a claim. [Citations
omitted.]
Comment: A lawyer may review what a client
plans to publish on a social media website in
advance of publication and guide the client
appropriately, including formulating a policy
on social media usage. Subject to ethics
rules, a lawyer may counsel the client to
publish truthful information favorable to the
client; discuss the significance and implications of social media posts (including their
content and advisability); review how the
factual context of a post may affect a persons
perception of the post; and how such posts
might be used in a litigation, including crossexamination. A lawyer may advise a client to
consider the possibility that someone may be
able to view a private social media profile
through court order, compulsory process, or
unethical conduct. A lawyer may advise a
client to refrain from or limit social media postings during the course of a litigation or
investigation.
If removing postings does not constitute

spoliation and is not otherwise illegal, or the
removal is done in compliance with the rules
and law on preservation and spoliation of
evidence, the lawyer may instruct the client
to remove existing postings on social media.
The lawyer may take possession of printed or
digital images of the clients posting made for
purposes of preservation.27
Indeed, in 2013 a Virginia lawyer was suspended for 5
years and faced a trial court sanction of $542,000 for
spoliation of Facebook evidence: the lawyer told his
paralegal to advise his client to clean up his Facebook
page by removing damaging photographs, denied in
discovery that plaintiff even had a Facebook account,
and later tried to hide his paralegals emails with the
plaintiff.28 In the Virginia case, the lawyer admitted he
had no familiarity with Facebook before the case.
Apparently the picture that started the dispute portrayed
plaintiff holding a beer, wearing a I [Heart] Hot
Moms shirt, with two blond girls in the background.
The plaintiff there, like Crowe, had deactivated his
Facebook page and was forced to reactivate and
27
North Carolina State Bar, 2014 Formal Ethics Opinion 5,

Op. # 2.
28
The state bar disciplinary disposition in In the Matter of

Matthew B. Murray, Virginia State Bar Docket Nos. 11-070088405 & 11-070-088422 is available at http://www.vsb.org/
docs/Murray-092513.pdf (last visited 1/20/16). The final court
order in the underlying case, which discusses the Facebook
evidence spoliation, is Allied Concrete Co. v. Lester, 736
S.E.2d 699, 301-03 (Va. 2013). The lawyer paid the sanction,
presumably from his fees earned from the large jury verdicts.
29
The Social Media Ethics Guidelines of the Commercial

and Federal Litigation Section of the New York State Bar
Association are available at http://www.nysba.org/socialme
diaguidelines/ (last visited 1/20/16).
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First Quarter 2016
This proposed New York ethical guideline provides a

roadmap as to how to proactively advise your clients
with respect to social media usage in litigation. Had
Mr. Crowe been so advised (which he may have
been), and had he taken that advice, he may not have
used Facebook to allegedly tell a fellow deckhand how
he really got hurt and the lies he wanted the deckhand
to tell.
time-travel into the Internets history. As lawyers, we

need to be conscious that people, especially Millennials,
share their lives extensively on social media and text
voraciously,31 and this information can almost always
be retrieved; we need to understand the basic benefits
and pitfalls of social media usage and advise our clients
accordingly.
CONCLUSION
Marissa M. Henderson is a partner at Ventker Warman

Henderson in Norfolk, Virginia. She is a graduate of the
University of Virginia, both for her undergraduate
degree and law school. Her practice focuses on maritime litigation matters and other commercial disputes
and litigation. She is licensed in both Virginia and
North Carolina.
A final takeaway from this article: counsel should advise

clients and conduct litigation as if nothing is truly ever
irretrievable once it is posted in social media or sent
electronically. It remains somewhere, waiting to be
retrieved from your Facebook history, or found by the
recipient on his phone or Facebook Messenger account.
Internet pages even get archived randomly in something
called The Wayback Machine,30 which allows you to
30
The Internet Archives Wayback Machine, available at

https://archive.org/web/ (last visited 1/20/16), is a digital
archive of the Internet that regularly takes snapshots of
websites, providing access to older versions of a webpage.
*****
31
Interestingly, the plaintiffs emails in the Crowe case were
never at issue, likely because he did not use email much.
Texting and posting offer more interactive platforms for
Millennials, perfect for casual, non-professional communications. Of course, email communications still feature
prominently in commercial litigation, in which the witnesses
tend to communicate with professional colleagues by email.
Hence, e-discovery of email accounts still keeps many litigators up late. However, in personal injury arena, social media
and texts tend to feature more prominently than emailat least
where discovery battles are concerned.
INTRODUCTION
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First Quarter 2016
MARITIME LABOUR CONVENTION, 2006
By Douglas B. Stevenson1
The Maritime Labour Convention, 2006 (MLC,
2006) is the most significant development in the long
history of the law of seafarers rights. It provides in one
convention a comprehensive statement of seafarers
rights that reflect both those that have withstood the
test of time as well as modern shipping realities. The
MLC, 2006 is easy to understand, capable of ratification, and enforceable. The most important aspect of the
MLC, 2006 is its underlying principle of respecting and
honoring merchant mariners.
The MLC, 2006 sets international standards for
seafarers working and living conditions. It consolidates
more than 65 international labor conventions and
recommendations that have been adopted by the International Labour Organization since 1920.
SOURCES OF SEAFARERS RIGHTS LAWS
Seafarers are the most regulated of all workers. Virtually every aspect of their shipboard being: their work,
their sleep, their food, their recreation, their hiring, their
dismissal, their health, their sickness, and even their
death are regulated.
The laws regulating seafarers and protecting their
rights are derived from the general maritime law and
in statutes enacted by maritime nations that are often
influenced by the general maritime law and by international conventions.
The general maritime law is customary international
maritime law that developed out of commercial
customs and practices that were followed in ancient
times. The protections for seafarers were therefore also
based upon commercial interests. In other words,
protecting seafarers was in the best interests of
promoting commerce. It is because of their vulnerability
as well as their importance to commerce that the general
maritime law has for centuries provided seafarers extraordinary protections.
The first written maritime codes that appeared in the
11th to 13th centuries provided remarkable protections
for ships crews, even by current standards. These codes
1
This paper was first presented at the 2015 Fall Meeting of
The Maritime Law Association of the United States in
Bermuda.
followed commercial practices that had developed in

Mediterranean shipping in the pre-Christian era. For
example, the ancient codes provisions for seafarers
medical care are still superior to modern land workers
compensation rights. The codes guaranteed that ships
crews would be repatriated to their home at the end of
their voyage. The codes also required that ships crews
be provided decent lodging and sustenance.
Enlightened lawmakers did not enact these ancient
seafarers protections for charitable or humanitarian
reasons. Seafarers protections developed out of the
self-interest of maritime commercial enterprises. In
simple terms, if you wanted your ship and its cargo to
get to its destination, you needed to attract and retain
skilled and reliable ships crews.
By the beginning of the 20th Century, workers unrest
about labor conditions grew in industrialized countries,
and trade unions gained increasing influence. Their
demands for social justice and higher living standards
for workers were heard at the end of the First World
War, where the participants in the Paris Peace Conference recognized workers significant contributions to
the war efforts, both on the battlefield and in industry.
In 1919, the Treaty of Versailles created the International Labor Organization. The principal reason for
creating the ILO was humanitarian: international standards were needed to improve labor conditions. Political
and economic reasons also inspired the creation of the
ILO: without improvements in working conditions,
social unrest was inevitable, but without international
standards, countries initiating social reforms could be
at a competitive disadvantage with those which did not.
The ILO was mandated to establish international labor
standards in a variety of industries, and from its very
beginning in 1919, the ILO focused its attention on
seafarers. From 1920 to 2005, 10 International Labor
Conferences adopted 68 distinctly maritime conventions
and recommendations.
The January 2001 agreement between shipowners and
trade unions, later known as the Geneva Accord,
called upon the ILO to consolidate and update existing
ILO Conventions and Recommendations into a new,
single framework Convention on maritime labor standards. The Geneva Accord was unprecedented in the

scope of the work it recommended, the extent of its
collaboration between the social partners on such a
major initiative, and in its ambitions to make shipping
safer and more humane by creating a super convention to serve as the fourth pillar of international law.
It proposed to go beyond the International Convention
for the Safety of Life at Sea (SOLAS), the International
Convention for the Prevention from Ships (MARPOL)
and the International Convention on Standards of
Training, Certification, and Watchkeeping for Seafarers
(STCW) by comprehensively addressing the human
factors of life and work on commercial vessels.
On February 23, 2006 the Tenth Maritime Session of the
International Labor Conference adopted the Maritime
Labor Convention. There were no votes against the
Convention. One hundred and six countries participated
in the Conference, including over 1100 accredited participants. The MLC, 2006, consolidates 37 of the 40 ILO
maritime Conventions, as well as 30 ILO Recommendations. It is the first ILO convention to consolidate nearly
an entire sector of older ILO conventions.
The MLC, 2006 represents the most significant development in the long history of seafarers rights law. In
100 pages, it provides a comprehensive statement of
seafarers rights that reflect seafarers rights that have
withstood the test of time, as well as modern shipping
realities. The MLC, 2006 includes standards for
conditions of employment, hours of work and rest,
accommodation, recreational facilities, food and
catering, health protection, medical care, welfare and
social security protection for seafarers, regulating
recruitment and placement services, and flag State
inspection systems. For the first time in any ILO
Convention, the MLC, 2006 includes seafarers rights
to shore leave. The Convention provides seafarers with
the right to make complaints both on board and ashore.
FORMAT OF THE MLC, 2006
The MLC, 2006 is organized by Articles, Regulations,
and a two-part Code. The two parts of the Code are
Standards (Part A) and Guidelines (Part B).
The Articles are broad mandatory principles. They are
followed by more detailed Regulations, which are also
mandatory. The Code provides even more detailed
mandatory Standards (Part A) and recommendatory
Guidelines (Part B). The Standards and Guidelines
are interrelated. The Guidelines, while not mandatory,
are helpful and sometimes essential for a proper
14
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understanding of the Regulations and the mandatory
Standards. In some cases, the mandatory Standards are
so generally worded it may be difficult to implement
them without the guidance in the corresponding provisions of the Guidelines.
The Regulations and the Code are divided into five
Titles:
Title 1: Minimum requirements for seafarers to
work on a ship
Title 2: Conditions of employment
Title 3: Accommodation, recreational facilities, food and catering
Title 4: Health protection, medical care,
welfare and social security protection
Title 5: Compliance and enforcement
The MLC, 2006 also contains an Explanatory note that
is not mandatory, but has been included to help countries implement the MLC, 2006.
The MLC, 2006 also uses a vertically integrated format
with a numbering system that links the Regulations,
Standards and Guidelines. Each Regulation also has a
"plain language" purpose clause.
For example:
Regulation 1.2 Medical certificate

Purpose: To ensure that all seafarers are
medically fit to perform their duties at sea
1. Seafarers shall not work on a ship unless
they are certified as medically fit to perform
their duties. ...
Standard A1.2 Medical certificate
The competent authority shall require that,
prior to beginning work on a ship, seafarers
hold a valid medical certificate attesting that
they are medically fit to perform the duties
they are to carry out at sea. ...
Guideline B1.2 Medical certificate
Guideline B1.2.1 International Guidelines...
APPLICATION OF THE MLC, 2006
The MLC, 2006 is intended to provide international
labor standards for most of the worlds seafarers.
Except for a few specific exclusions and areas where
flexibility is provided for national authorities to
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exempt smaller ships (200 gross tonnage and below)

that do not go on international voyages from some of
its aspects, the MLC, 2006 applies to all ships (and to the
seafarers on those ships) whether publicly or privately
owned that are ordinarily engaged in commercial
activities.
conventions they have ratified, but those conventions

will be closed to further ratification. Seafarers Identity
Document Conventions (ILO-108 and ILO-185) are not
included in the MLC, 2006.
The definition of seafarers protected by the MLC,

2006 is very broad. It includes all persons employed
or engaged or working in any capacity on a covered
ship. The MLC, 2006 provides some national flexibility
allowing Member nations to exclude some categories of
persons from its application.
The MLC, 2006 establishes procedures for updating it

that allow technical parts to be amended by a simplified,
accelerated process that does not require the entire
MLC, 2006 to be revised. The Special Tripartite
Committee keeps the MLC, 2006 under continuous
review. The Special Tripartite Committee is comprised
of Governments that have ratified the MLC, 2006 and
Shipowner and Seafarer representatives chosen by the
ILO Governing Body. Non-ratifying nations and nongovernmental organizations can also participate in the
Special Tripartite Committee, but without a vote. In
2014, the Special Tripartite Committee adopted two
amendments to the MLC, 2006 relating to abandonment
and seafarers claims for death and long-term disability
that will enable shipowners to have financial security to
cover abandonment, seafarers death and long-term
disability entitlements. The amendments are expected
to come into force in 2017.
The definition of ship makes the MLC, 2006 applicable to all commercial ships, both publicly and privately
owned with few exceptions. The MLC, 2006 allows
Flag States to exempt from some of its standards
smaller ships (200 gross tons and below) that do not
make international voyages. The MLC, 2006 does not
apply to:

ships which navigate exclusively in inland waters

or waters within, or closely adjacent to, sheltered
waters or areas where port regulations apply;
ships engaged in fishing; ships of traditional build

such as dhows and junks; or
warships or naval auxiliaries.
The definition of shipowner is intended to extend the

requirements of the MLC, 2006 to all persons and organizations that have or have assumed responsibilities for
seafarers on ships. The definition includes owners,
managers, agents, and bareboat charterers.
ENTRY INTO FORCE
The MLC, 2006 entered into force on August 20, 2013,
12 months after it was ratified by 30 ILO member
nations with at least 33 per cent of the worlds gross
tonnage of ships.
EFFECT ON EXISTING ILO CONVENTIONS
When an ILO member nation ratifies the MLC, 2006, it
updates all of the existing ILO maritime labor conventions that have been consolidated into the MLC, 2006.
Countries that ratify the MLC, 2006 are not be bound by
the ILO maritime conventions that existed when the
MLC, 2006 entered into force. Countries that have not
ratified the MLC, 2006 remain bound by the ILO
UPDATING THE MLC, 2006
MINIMUM REQUIREMENTS FOR SEAFARERS

TO WORK ON A SHIP
Minimum Age 1.1
Purpose: To ensure that no under-age persons work on
a ship.
The minimum age for working on a ship is 16. Special
attention should be given to the needs of young persons
under the age of 18. For example, seafarers under the
age of 18 should not work at night. Night work is
defined by national law or practice covering a period
of at least nine hours starting no later than midnight
and ending no earlier than 0500. Exceptions to the
night work requirements can be made by national authorities for training and other purposes.
Medical Certificates 1.2
Purpose: To ensure that all seafarers are medically fit
to perform their duties at sea.
Seafarers must have a valid medical certificate to work
on a ship. The medical certificate attests a seafarers
medical fitness to perform his or her duties. The
medical fitness standards are established by national

authorities in consultation with shipowners and
seafarers organizations. The standards set by the International Convention on Standards of Training,
Certification and Watchkeeping for Seafarers, 1978
(STCW) are also valid. Medical certificates must be
issued by qualified medical practitioners and are valid
for no more than two years. Medical Certificates for
seafarers under the age of 18 are valid for up to one
year. Color vision certificates can be valid for up to
six years.
Training and Qualifications 1.3
Purpose: To ensure that seafarers are trained or qualified to carry out their duties on board ship.
The MLC, 2006 confirms the principle that all seafarers
must be trained and qualified for their duties aboard
ship, but it defers to the IMOs STCW to set training
and qualification requirements. For those occupations
not covered by STCW standards, the ILO standards
previously adopted by an ILO Member nation will
continue until standards are established by IMO or
until five years after the MLC, 2006 enters into force,
whichever is earlier.
Recruitment and Placement 1.4
Purpose: To ensure that seafarers have access to an
efficient and well-regulated seafarer recruitment and
placement system.
Recruiting and placement agencies for seafarers must be
regulated by countries in which they operate. Flag states
cannot regulate placement agencies outside of their territory, but they must require shipowners of ships flying
their flag that use placement agencies to use only placement agencies that conform to the requirements of the
MLC, 2006.
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Placement services must maintain insurance or

other system to compensate seafarers monetary
losses suffered because of the placement services
or shipowners contractual defaults.
Nations must maintain a system for investigating

complaints about seafarers placement services.
CONDITIONS OF EMPLOYMENT
Seafarers Employment Agreements Regulation 2.1
Purpose: To ensure that seafarers have a fair employment agreement.
Flag states must implement the requirements of the
MLC, 2006 for seafarers employment agreements for
seafarers working on their ships though their laws or
regulations. Seafarers must be provided written
seafarers employment agreements that are clearly
written and enforceable. They must be given an opportunity to review the seafarers employment agreements
and to get advice on their terms and conditions before
signing them. Collective agreements can be incorporated into seafarers employment contracts.
Some of the requirements for seafarers employment
agreements include:

Agreements must be signed by both the seafarer

and the shipowner;
Seafarers must be given the opportunity to

examine the agreement and get advice on its
terms and conditions before signing it;
Seafarers and shipowners shall receive signed

original agreements;
Seafarers must be provided with a record of

employment on the ship;
Agreements must be available in the English

language, except for vessels on domestic voyages;
Agreements must contain the information specified in the MLC, 2006.
Standards for placement services include:

Placement services are prohibited from charging
fees to seafarers. Seafarers can be required to pay
the costs of obtaining a national medical certificate, national seafarers book, passport, and other
travel documents. The costs of visas, however,
must be borne by shipowners.
Wages - Regulation 2.2
Placement services are prohibited from blacklisting seafarers.
Purpose: To ensure that seafarers are paid for their

services.
Placement services must ensure that seafarers

contracts are explained to them and that they
receive a copy of their contract.
Flag states must adopt laws or regulations that ensure

seafarers are paid their wages according to the requirements of the MLC, 2006. The MLC, 2006 sets out basic

requirements for paying wages to seafarers, but it does
not specify the amount of wages that must be paid.
Wages must be paid at least once a month. The MLC,
2006 also requires flag states to require shipowners to
provide seafarers with a way to make allotments to their
families, dependents, or legal beneficiaries.
Hours of Work and Hours of Rest Regulation 2.3
Purpose: To ensure that seafarers have regulated hours
of work or hours of rest.
Hours of work and hours of rest for seafarers must be
regulated. The limits apply to all seafarers, not only
watchstanders. Records of seafarers daily hours of
work or rest must be maintained and be available to
seafarers and enforcement authorities. The limits can
be exceeded if work is required for immediate safety
of the ship, persons or cargo on board, or to give assistance to other ships or persons in distress at sea.
The limits on hours of work or rest are:

Maximum hours of work cannot exceed 14 hours

in any 24-hour period; and 72 hours in any sevenday period
Minimum hours of rest cannot be less than 10

hours in any 24-hour period; and 77 hours in any
seven-day period. (Using hours of rest requirements will allow 91 hours of work in a sevenday period)
17
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their repatriation obligations are fulfilled. If shipowners
fail to meet their repatriation obligations the flag state
should make arrangements for repatriation. If the flag
state fails to repatriate seafarers, then the port state or the
seafarers state of nationality can repatriate the seafarer
and collect its expenses from the flag state. The MLC,
2006 establishes the standards for seafarers rights to
repatriation. Shipowners are prohibited from requiring
seafarers to make an advance payment towards repatriation expenses and also from recovering repatriation
expenses from seafarers wages. Seafarers can be
required to pay repatriation expenses and have the
expenses deducted from earned wages when they are
in serious default of their employment obligations.
Compensation for Ships Loss or Foundering
Regulation 2.6
Purpose: To ensure that seafarers are compensated
when a ship is lost or has foundered.
Seafarers are entitled to compensation for injury, financial loss, and unemployment when the ship on which
they are employed is lost or has foundered. National law
should establish the amount of compensation. The
guidelines allow the indemnity to be limited to two
months wages.
Manning Levels Regulation 2.7
Purpose: To ensure that seafarers work on board ships
with sufficient personnel for the safe, efficient and
secure operation of the ship.
Entitlement to Leave - Regulation 2.4

Purpose: To ensure that seafarers have adequate leave.
In addition to requiring annual leave for seafarers, the
MLC, 2006 establishes seafarers right to shore leave.
Annual leave with pay shall be calculated on the basis of
at least 2.5 calendar days per month of employment. The
rights to shore leave are not explained in the Standards
or Guidelines. The Regulation simply requires that
Seafarers shall be granted shore leave to benefit their
health and well-being and with the operational requirements of their positions.
Repatriation Regulation 2.5
Purpose: To ensure that seafarers are able to return
home.
In most circumstances, seafarers are entitled to be repatriated at the shipowners expense. Shipowners should
be required to provide financial security to ensure that
The MLC, 2006 requires flag states to require all of its

ships to have a sufficient number of seafarers employed
on board to ensure that ships are operated safely and
efficiently, taking into account security requirements,
seafarer fatigue, and the particular conditions of the
voyage.
Career and Skill Development and Opportunities for
Seafarers Employment Regulation 2.8
Purpose: To promote career and skill development and
employment opportunities for seafarers.
Member nations are required to have national policies to
promote employment in the maritime sector and to
encourage career and skill development and greater
employment opportunities for their seafarers.

ACCOMMODATION, RECREATIONAL
FACILITIES, FOOD AND CATERING
Accommodation and Recreational Facilities
Regulation 3.1
Purpose: To ensure that seafarers have decent accommodation and recreational facilities on board.
Flag states are responsible for ensuring that the MLC,
2006 requirements for accommodation, recreational
facilities, food, and catering are implemented on ships
flying their flags. The MLC, 2006 provides detailed and
technical requirements for the physical design and
structural layout of ships. Provisions affecting ship
construction and equipment do not apply to ships
constructed before the MLC, 2006 came into force for
the country concerned. Smaller ships (200 gross tonnage
and below) may be exempted from specific accommodation requirements. Detailed standards are specified
for the following:
18
First Quarter 2016

practices relating to food, must be suitable in respect
to quantity, nutritional value, quality, and variety. The
catering departments organization and equipment must
be adequate to provide seafarers with adequate, varied
and nutritious meals prepared and served in hygienic
conditions.
HEALTH PROTECTION, MEDICAL CARE,
WELFARE AND SOCIAL SECURITY
PROTECTION
Medical Care on Board Ship and Ashore
Regulation 4.1
Purpose: To protect the health of seafarers and ensure
their prompt access to medical care on board ship and
ashore.
Design and construction
Ventilation
Heating
Lighting
Sleeping rooms
Mess rooms
Sanitary accommodation
Flag states must ensure that all seafarers working on

their ships have health protection coverage and prompt
access to medical care on vessels and ashore. A port
state must provide access to its medical facilities to all
seafarers on ships in its territory. Seafarers must be
provided levels of health protection and medical care
that is comparable to that available to workers ashore.
National regulations must establish standards for onboard hospital and medical care facilities and equipment. Requirements for medical chests, medical
doctors on ships carrying 100 or more persons,
medical qualifications for persons on ships that do not
carry a doctor, and 24/7 radio or satellite medical advisory systems are specified.
Hospital accommodation
Shipowners Liability Regulation 4.2
Other facilities
Bedding, mess utensils and miscellaneous provision
Recreational facilities, mail and ship visit arrangements
Prevention of noise and vibration
Food and Catering Regulation 3.2

Purpose: To ensure that seafarers have access to good
quality food and drinking water provided under regulated hygienic conditions.
Flag states are primarily responsibility for ensuring that
the MLC, 2006 standards for food and catering are
followed on their ships. Food and drinking water
supplies, having regard to the number of seafarers on
board and their religious requirements and cultural
Purpose: To ensure that seafarers are protected from

the financial consequences of sickness, injury, or death
in conjunction with their employment.
Shipowners are obligated to pay for medical care
expenses, including housing and subsistence during
recuperation for seafarers illnesses or injuries incurred
between the times when they began duty until they are
repatriated. National laws can exclude shipowners liability to pay for injuries or sicknesses that were caused by
the seafarers own willful misconduct or were intentionally concealed when the seafarer was hired. National laws
can limit shipowners liability to pay medical expenses to
not less than 16 weeks from the day the injury or
commencement of the sickness. Shipowners are liable
to pay burial expenses for seafarers who die on board
or ashore during the period of employment.

Health and Safety Protection and Accident
Prevention Regulation 4.3
Purpose: To ensure that seafarers work environment on
board ships promotes occupational safety and health.
This section requires flag states to adopt regulations
designed to prevent accidents, injuries, and illnesses
on their ships. National health and safety protection
and accident prevention regulations should include the
following standards:

Precautions to prevent accidents, injuries, and

diseases, including exposure to harmful levels of
ambient factors and chemicals or other substances;
Providing personal safety equipment and training

on its use;
Inspecting, reporting, and correcting unsafe conditions; and
Reporting and investigating occupational accidents.
Shore-based Welfare Facilities Regulation 4.4

Purpose: To ensure that seafarers working on board a
ship have access to shore-based facilities and services
to secure their health and well-being.
The responsibilities of port states relating to shore-based
welfare facilities for seafarers are largely contained in
the Guidelines recommendations. Port states are
required to promote developing shore-based welfare
facilities for seafarers in their ports, and they are also
encouraged to establish welfare boards to regularly
review seafarers welfare facilities and services to
ensure that they are appropriate for seafarers needs.
Port states are required to ensure that existing facilities
are easily accessible to seafarers, irrespective of the
seafarers nationality, race, color, sex, religion, political
opinion, or social origin and irrespective of the flag state
of the ship on which they are employed. Port states are
encouraged to ensure that seafarers welfare facilities are
available in their ports, but they are not obligated to
finance them.
Social Security Regulation 4.5
Purpose: To ensure that measures are taken with a view
to providing seafarers with access to social security
protection.
Social security protections are vastly different from
country to country and reflect each countrys national
practices. National social security protections often
19
First Quarter 2016

exclude persons who are not residents or nationals.
This section provides flexible requirements for
Member States to provide social security protections
for seafarers to ensure that seafarers and their dependents are not left without protections. Member States
must ensure that the social security protections that are
provided to seafarers and their dependents are at least as
good as those provided for shore workers. Member
States must also undertake steps toward progressively
achieving comprehensive social security protections for
seafarers. Provision is made for national circumstances
and for bilateral, multilateral, and other arrangements in
connection with social security coverage.
Member States must provide at least three of the
following nine branches of social security protection
for seafarers, and they should attempt to progressively
add more:

Medical care;
Sickness-benefit;
Unemployment benefit;
Old-age benefit;
Employment injury benefit;
Family benefit;
Maternity benefit;
Invalidity benefit; and
Survivors benefit
The social security benefits that Member States are

required to provide are in addition to those that would
be provided by shipowners in 4.1 and 4.2. The shipowners obligations in 4.1 and 4.2 are generally shortterm benefits. The Member States obligations in 4.5 are
intended to cover long-term benefits.
COMPLIANCE AND ENFORCEMENT
Title 5 provides an innovative and comprehensive
system of compliance and enforcement mechanisms
for flag states, port states, labor-supplying states,
seafarers, and shipowners including inspections, certification, grievance procedures, and investigations. A
fundamental tenet of this Title is that seafarers and shipowners, like all other persons, are equal before the law
and are entitled to equal protection of the law. As such,
they should not be subject to discrimination in their

access to courts, tribunals or other dispute resolution
mechanisms. The MLC, 2006 is enforced by the
seafarers complaint procedures, shipowners and shipmasters supervising conditions on their ships, flag
states exercising jurisdiction and control over their
ships, and port states inspecting foreign ships.
Flag State Responsibilities Regulation 5.1
Purpose: To ensure that each Member implements its
responsibilities under this Convention with respect to
ships that fly its flag.
In accordance with existing international law requirements, the flag states are primarily responsible for
ensuring that requirements of the MLC, 2006 are
followed on ships flying their flags. Flag states may
authorize other organizations, called recognized organizations, to perform some of their inspection
functions, but the flag states still retain full responsibility for inspecting and certifying living and working
conditions on their ships.
20
First Quarter 2016

inspection is based on a complaint, the inspector must
maintain the confidentiality of the source of the
complaint or grievance and must not reveal to the shipowner that the inspection was made in response to a
complaint. Vessels can be detained to correct deficiencies that present a significant danger to seafarers health,
safety, or security.
On-board Complaint Procedures
Flag states must establish on-board grievance procedures to handle seafarers complaints alleging
violations of the MLC, 2006 that are fair, effective,
and expeditious. The procedures should allow seafarers
to be accompanied or represented during the complaints
procedure, as well as provide safeguards against retaliation against the seafarer for making a complaint.
Marine Casualty Investigations
Flag states must conduct an investigation of any casualty
that resulted in death or serious injury involving a vessel
flying their flag.
Maritime Labor Certificate
Port State Responsibilities Regulation 5.2
All ships 500 gross tons or more that operate internationally must have a Maritime Labor Certificate issued
by the flag state. The Maritime Labor Certificate certifies that the working and living conditions on the ship
have been inspected and conform with the national laws,
regulations, or other measures implementing the MLC,
2006. Importantly, the certificate identifies the shipowner responsible for satisfying shipowner obligations
under the MLC, 2006.
Purpose: To enable each Member to implement its responsibilities under this Convention regarding international
cooperation in the implementation and enforcement of
the Convention standards on foreign ships.
Declaration of Maritime Labor Compliance

All ships 500 gross tons or more that operate internationally must have a Declaration of Maritime Labor
Compliance (DMLC). The DMLC, which is attached
to the Maritime Labor Certificate, summarizes the
national laws or regulations implementing an agreedupon list of 14 areas of the maritime standards and
describes the shipowners plan for implementing the
Convention that will be maintained on the ship
between inspections. The summary of national laws
and regulations are contained in DMLC Part 1 prepared
by the flag state. The shipowners plan for implementing
the MLC, 2006 is contained in DMLC Part 2 prepared
by the shipowner.
Port State Control

Port states may, but are not required to, inspect any
foreign ship in its ports for compliance with the MLC,
2006. Ships from countries that have not ratified the
MLC, 2006 are subject to port state control inspections
and to possible detention if they do not meet the
minimum standards of MLC, 2006. The inspection
should normally be limited to examining the vessels
Maritime Labor Certificate Declaration of Labor
Compliance. Inspections can go beyond the certificate
or declaration if:

Required documents are not produced or are not

properly maintained:,
There are clear grounds for believing that the ship

does not conform with the MLC, 2006;
There are reasonable grounds to believe that the

ship has changed flags to avoid complying with
the MLC, 2006;
There is a complaint alleging that the ship does not

conform to the MLC, 2006.
Inspection and Enforcement

Flag states must inspect their vessels for compliance
with MLC, 2006 at least once every three years. If an

Any person with an interest in the safety of the ship,
including an interest in safety or health hazards to
seafarers on board, may make a complaint to port state
control authorities about conditions on a ship that do not
conform to the MLC, 2006. Inspections made in
response to the complaint should generally be limited
to matters within the scope of the complaint. Vessels can
be detained by port state control to correct deficiencies
that present a significant danger to seafarers health,
safety, or security.
Onshore Seafarer Complaint-handling Procedures
Port states must provide procedures giving seafarers on
ships in their ports the opportunity to report violations,
including violations of seafarers rights established in
the MLC, 2006. Upon receipt of the report the authorized port officer should conduct an initial investigation.
The officer should then take the following steps to
resolve the complaint at the lowest possible level:

Ensure that the on-board grievance procedure has

been attempted, if appropriate;
Conduct a port state control inspection;
If detaining the ship following a port state control

inspection is not appropriate and the complaint has
not been resolved by the on-board grievance
procedure, the authorized officer should seek the
advice and a corrective plan of action from the
flag state;
Unresolved complaints should be reported to the

ILO and to the appropriate shipowners and
seafarers organizations in the port state.
21
First Quarter 2016

and monitoring system for enforcing its labor-supplying
responsibilities.
The MLC, 2006 provides a comprehensive, concise, and
understandable framework for the protection of
seafarers that recognizes the contribution they make to
the maritime industry.
RESOURCES
The International Labour Organization has a section of
its website devoted to the MLC, 2006: http://www.
ilo.org/global/standards/maritime-labour-convention/
langen/index.htm
It contains the text of the MLC, 2006 at: http://www.
ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:91:0::
NO:91:P91_INSTRUMENT_ID:312331:NO
John Isaac Blanck Jr., Reflections on the Negotiation of
the Maritime Labor Convention 2006 at the International Labor Organization, 31 Tulane Maritime Law
Journal 121 (Winter 2006)
Robert Force and Martin J. Norris, The Law of Seamen,
5th Edition (2003)
Thomas J. Schoenbaum, Admiralty and Maritime Law,
4th Edition (2001)
Peter B. Payoyo, A Primer on the International Bill of
Rights for Seafarers, Parola, 2006
International Shipping Federation, ILO Maritime
Labour Convention: A Guide for the Shipping Industry,
1st Edition (2006)
*****
Labor-supplying Responsibilities Regulation 5.3

Purpose: To ensure that each Member implements its
responsibilities under this Convention as pertaining to
seafarer recruitment and placement and the social
protection of its seafarers.
The MLC, 2006 recognizes that flag states the primary
responsibility for regulating seafarers working and
living conditions on their ships. The provisions of the
MLC, 2006 relating to regulating seafarers recruiting
and placement agencies as well as some of its social
security requirements must be enforced by laborsupplying countries. The MLC, 2006 requires laborsupplying Members to establish an effective inspection
Douglas B. Stevenson, Esq. is the Director of The

Center for Seafarers Rights of The Seamens Church
Institute of New York and New Jersey, providing legal
assistance and advocacy for merchant mariners worldwide. He also serves as President of the Life Saving
Benevolent Association of New York and is Past
Chairman of the International Christian Maritime
Association. He is a graduate of the U.S. Coast
Guard Academy, is admitted to the Bar in New York
State and the State of Florida, and is a retired U.S.
Coast Guard officer.
22
First Quarter 2016
RECENT DEVELOPMENTS IN MAINTENANCE AND CURE

By Aaron B. Greenbaum, Esq.1
I. Introduction
This article discusses noteworthy decisions concerning
maintenance and cure issued between September 1,
2014 and September 30, 2015. The selection of cases
included in this article reflects trends in the law,
including examination of the effects of bankruptcy,
application of the collateral source rule, analysis of
when maximum medical improvement is reached, application of the borrowed servant doctrine, affirmation of
the McCorpen defense, and the awarding of punitive
damages post-Townsend.
II. Ongoing Nature of Maintenance and Cure
Obligation
In Arctic Storm, Inc. v. Madrid,2 a fire broke out in the
engine room of a vessel while its crewmembers were
onboard, prompting them to evacuate. The following
day, the crewmember-claimants signed a form denying
that they had been injured or had fallen ill in the service
of the vessel. One month following the incident, the
crewmember-claimants informed the vessel owner that
they were seeking and were scheduled to receive treatment for psychological injuries they had suffered as a
result of the fire.3
The vessel owner did not pay maintenance for the 38
days from the date of the incident through the claimants
first appointment with their treating psychologist and
did not initiate maintenance and cure benefits for
several months following the incident.4 The vessel
owner took the position that it was obligated to pay
maintenance and cure only covering dates for which
it knew the claimants were still receiving treatment,
and that it reasonably waited until it received medical
records confirming dates of the counseling sessions
before providing benefits covering the time leading up
to and including these dates.5
The court rejected the vessel owners arguments,

holding that a seaman is not obligated to supply
updated records before receiving each new installment
of maintenance. A shipowner cannot withhold maintenance where the records in its possession indicate that
the seamans treatment is ongoing and curative.6 The
court ordered the vessel owner to pay back maintenance,
holding that the fire was the triggering event for
commencement of the maintenance and cure obligation.7 The court further ordered the vessel owner
to pay maintenance on a regular, two-week schedule
going forward.8 The court also held that the crewmembers claims for punitive damages could proceed to the
trier of fact.9
III. The Collateral Source Rule
In Blanchard v. United States,10 the plaintiff was
injured while working as a deckhand on a pushboat
located on the Atchafalaya River, when the wake from
a passing U.S. Army Corps of Engineers vessel rocked
the pushboat, causing plaintiff to fall and injure himself.
The plaintiffs employer filed a cross-claim against the
United States seeking indemnity for any maintenance
and cure benefits paid or to be paid to the plaintiff.11
After trial on the merits, the court assigned the United
States 100% fault for the incident.12 Damages were
awarded in the amount of $585,784.06, plus postjudgment interest. Of that total, the parties stipulated
that $42,794.44 was for past medical expenses.13 The
plaintiffs employer sought recovery from the United
States for maintenance and cure payments made to
the plaintiff in the stipulated amount of $104,550.36,
plus post-judgment interest.14
Arctic Storm, Inc., 2015 U.S. Dist. LEXIS 102323, at *11

(citing Boyden v. Am. Seafoods Co., 2000 AMC 1512 (W.D.
Wash. Mar. 21, 2000)).
7
Arctic Storm, Inc., 2015 U.S. Dist. LEXIS 102323, at *13.
The materials forming the basis of this article were originally

presented at the Fall 2015 meeting of The Maritime Law Association of the United States.
2
10
Blanchard v. United States, 2014 U.S. Dist. LEXIS

131958, at *2, 2014 AMC 2888 (W.D. La. Sept. 19, 2014).
Arctic Storm, Inc. v. Madrid, 2015 U.S. Dist. LEXIS

102323, at *2 (W.D. Wash. May 22, 2015).
11
Blanchard, 2014 U.S. Dist. LEXIS 131958, at *2.
12
Blanchard, 2014 U.S. Dist. LEXIS 131958, at *2-3.
13
Arctic Storm, Inc., 2015 U.S. Dist. LEXIS 102323, at *2-3.
14

The United States contended that it was being required
to pay the plaintiffs medical expenses twiceonce to
the plaintiff and once to the employer.15 The court held
that the collateral source rule applied, reasoning that by
strict application of the collateral source rule, the United
States as the tortfeasor, would not be able to reduce the
damages it owed to the plaintiff by the amount of those
medical payments. The outcome would be no different
if the plaintiff had received workers compensation
benefits or private health insurance benefits instead of
cure.16 The United States did not contest that proposition, or the proposition that an employer could recover
maintenance and cure payments from a third-party
whose negligence partially or wholly caused the
seamans injury.17 Rather the United States argued
that it was paying for the same damages twice, and in
doing so, the result would run afoul of the policy to
avoid overdeterrence and overcompensation.18
The Court rejected the United States argument.
Because the plaintiff and its employer had separate
and independent losses, the United States, as the
sole-fault tortfeasor, was not paying twice for the
same injury.19 Rather, the United States would pay
once, for two separate injuries . . . which happen to be in
the same amount.20 Although the court acknowledged
that the result may be troubling, the collateral source
rule is clear, as is the maintenance and cure recovery
provision, and given the priority afforded to the policy
that the tortfeasor should bear the responsibility for its
conduct the Court finds no basis for deviation from
either rule.21
15
16
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First Quarter 2016

IV. Procedure for Compelling Maintenance and
Cure
The issue in Helix Energy Solutions Group, Inc. v.
Howard, 22 was whether a seaman could compel his
employer to institute maintenance and cure benefits by
filing a motion to compel, rather than filing a Motion
for Summary Judgment or seeking a determination on
the merits of his maintenance and cure claim. The Texas
state trial court had granted the seamans motion to
compel and ordered the employer to institute maintenance and cure payments going forward. The employer
appealed, arguing that the trial court had issued a
temporary injunction in violation of the requirements
of Texas Rule of Civil Procedure 683. The Texas
Court of Appeals agreed and vacated the trial courts
order.23
The court held that state law, rather than federal law,
applied to the procedural question of whether a claim
for maintenance and cure could be decided by the
court on a motion to compel.24 Because the trial
courts order required the employer to perform certain
actionsspecifically, to make continuing payments to
the plaintiffit was a classic example of a mandatory
injunction.25
Texas Rule of Civil Procedure 683 requires that an
injunction set forth the reasons for its issuance, be
specific in terms, describe in reasonable detail the acts
to be restrained, and include an order setting the cause
for trial on the merits with respect to the ultimate relief
sought.26 Although the trial courts order failed to
comply with any of these requirements, the plaintiff
argued that the trial court arrived at the correct
result under federal maritime law.27 The appellate
court found the trial courts order void for failure to
comply with Texas Rule of Civil Procedure 683.28
Therefore the appellate court could not address the
17
Blanchard, 2014 U.S. Dist. LEXIS 131958, at *8 (citing

Bertram v. Freeport McMoran, Inc., 35 F.3d 1008, 1013 (5th
Cir. 1994); Savoie v. LaFourche Boat Rentals, 627 F.2d 722,
723 (5th Cir. 1980); Adams v. Texaco, Inc., 640 F.2d 618, 620
(5th Cir. 1981)).
18
Blanchard, 2014 U.S. Dist. LEXIS 131958, at *8 (citing

Davis v. Odeco, Inc., 18 F.3d 1237, 1244 n. 21 (5th Cir.
1994)).
19
Blanchard, 2014 U.S. Dist. LEXIS 131958, *14.
22
Helix Energy Solutions Group, Inc. v. Howard, 452

S.W.3d 40 (Tex. App. Houston-14th Dist. 2014). The plaintiff
did not seek relief in the form of filing a Motion for Summary
Judgment or by requesting a trial on the merits of his maintenance and cure claim.
23
Helix Energy Solutions Group, 452 S.W.3d 40, 42.
24
Helix Energy Solutions Group, 452 S.W.3d 40, 43-44.
25
20
Blanchard, 2014 U.S. Dist. LEXIS 131958, *14 (citing

Jones v. Waterman S.S. Corp., 155 F.2d 992 (3rd Cir.
1946); Bertram v. Freeport McMoran, Inc., 35 F.3d 1008
(5th Cir. 1994)).
21
Blanchard, 2014 U.S. Dist. LEXIS 131958, *14-15.
26
Helix Energy Solutions Group, 452 S.W.3d 40, 44 (citing

Tex. R. Civ. Pro. 683).
27
Helix Energy Solutions Group, 452 S.W.3d 40, 44-45.
28

plaintiffs arguments that he was entitled to maintenance
and cure under federal maritime law.29 It appears that
the proper procedural vehicle to seek institution of maintenance and cure, at least under Texas state law, is to file
a Motion for Summary Judgment or seek a determination on the merits at a bench trial.
V. The Automatic Bankruptcy Stay
In Bratkowski v. Cal Dive Intl, Inc.,30 the plaintiff sued
his employer in the U.S. District Court for the Eastern
District of Louisiana for Jones Act negligence, as well
as under the general maritime law for unseaworthiness
and for maintenance and cure. One month after the
plaintiff filed suit, the defendant-employer filed a
Voluntary Petition for Chapter 11 Bankruptcy in the
U.S. Bankruptcy Court for the District of Delaware,
thereby invoking the protections of the automatic
bankruptcy stay under 11 U.S.C. 362(a).31 In the bankruptcy court, the plaintiff filed a Motion to Lift the
Automatic Stay of the proceedings, including with
respect to his maintenance and cure claims.32 The
employer then filed a Motion to Stay the Proceedings
in the district court in light of the bankruptcy proceeding
pending in Delaware.33
According to the plaintiffs pleadings in the district
court, he was receiving curative treatment for his
lower back and had not yet reached maximum medical
improvement. However, his maintenance and cure benefits were prematurely terminated shortly following
the employers filing of bankruptcy.34
The district court declined to delay its ruling on the
employers Motion to Stay until the Motion to Lift the
Stay (pending in bankruptcy court) had been resolved.35
The district court also declined to hold that the automatic
stay did not apply to an injured seamans claims for
24
First Quarter 2016

maintenance and cure, holding that the automatic
stay that is already in effect by operation of 11 U.S.C.
362 has suspended this Courts authority to continue
the judicial proceedings pending against the debtor.36
The court ruled that the plaintiff could seek relief
from the district court if the bankruptcy court lifted the
stay.37 The district courts decision appears limited to
whether it (as opposed to the bankruptcy court) had the
authority to lift or disregard the stay as it concerned
the plaintiffs maintenance and cure claims. The district
court noted, however, that the duty to pay maintenance
and cure continues even after a shipowner declares
bankruptcy.38
VI. Direct Actions Against Insurers
In Bratkowski v. Aspen Ins. UK, Ltd.,39 following the
employer-defendants filing of a Chapter 11 bankruptcy
proceeding, the plaintiff brought suit against the defendants liability insurer, Aspen Insurance UK Limited,
pursuant to the Louisiana Direct Action statute. The
insurer filed a Motion for Summary Judgment seeking
the dismissal of all claims against it, including plaintiffs
claims for maintenance and cure. 40 Specifically, it
argued that the policies of insurance were issued and
delivered in Houston, Texas, not Louisiana, and that
the accident sued upon occurred on the high seas on a
vessel located on the Outer Continental Shelf, not within
the territorial waters of the State of Louisiana.41
The Louisiana Direct Action Statute permits an action
against an insurer of a tortfeasor if the plaintiff can
establish that (1) the accident or injury occurred in
Louisiana, (2) the policy was written in Louisiana, or
36
Bratkowski v. Cal Dive Intl, Inc., 2015 U.S. Dist. LEXIS

51643, at *3-4.
37
29
30
51643, at *1-2 (E.D. La. Apr. 20, 2015).
31
51643, at *2.
32

51643, at *2.
33
51643, at *2-3.

51643, at *4. Approximately one month after the district
courts decision, the parties entered into a stipulation in the
bankruptcy court regarding lifting the stay. In re Cal Dive
International, Inc. et al, case no. 15-10458, U.S. Bankruptcy
Court for the District of Delaware, Rec. Doc. 395-1.
38

51643, at *4 fn. 3 (citing Matter of Sea Ray Marine Services,
Inc., 105 B.R. 12, 13 (Bankr. E.D. La. 1989).
39
Bratkowski v. Aspen Ins. UK, Ltd., 2015 U.S. Dist. LEXIS

78536, at *1, 2015 AMC 1567 (E.D. La. Jun. 17, 2015). See
also Louisianas Direct Action statute. La. R.S. 22:1269.
34
See Bratkowski v. Cal Dive Intl, Inc., civ. no. 2:15-00294,
U.S District Court for the Eastern District of Louisiana, Rec.
Doc. 18.
40
35
41

51643, at *3.

78536, at *3.
78536, at *5-6.

(3) the policy was delivered in Louisiana.42 It was
undisputed that the accident giving rise to the Jones
Act and unseaworthiness claims occurred on the OCS,
not in Louisiana. Thus, the court granted the insurer
summary judgment with respect to those claims. 43
However, the court denied the insurers request for
summary judgment as to the maintenance and cure
claims, holding that genuine issues of material fact
remained as to whether the failure to pay maintenance
and cure resulted in an injury that occurred in
Louisiana.44
VII. The Borrowed Servant Doctrine
Who is the seamans employer for the purposes of the
maintenance and cure obligationa staffing agency or
the vessel owner? In In re Weeks Marine,45 a staffing
agency, Aerotek, Inc. brought a Motion for Summary
Judgment, seeking a determination that the plaintiffseaman was a borrowed servant of Weeks Marine,
and, therefore, that Aerotek was entitled to terminate
maintenance and cure benefits.
Weeks had entered into a contract with Aerotek, a
staffing service agency, in which Aerotek would
provide supplemental staffing of workers for Weeks.46
The plaintiff signed an Employment Agreement with
Aerotek in which he agreed to be assigned to work as
a crane operator for Weeks.47 He was subsequently
injured onboard Weeks vessel and Aerotek initially
paid him benefits.48
The district court applied the nine factor borrowed
servant test set forth by the U.S. Circuit Court of
Appeals for the Fifth Circuit in Ruiz v. Shell Oil
Co.,49 finding that the plaintiff was a borrowed servant
25
First Quarter 2016

of Weeks.50 Accordingly, Aeroteks maintenance and
cure obligation was terminated, and Weeks was
ordered to pay maintenance and cure going forward.51
VIII. Maximum Medical Improvement
In Hedges v. Foss Mar. Co.,52 the plaintiff had undergone five surgeries for his lower back since his accident
and continued to suffer from ongoing lower back pain
and disability. His treating physician recommended that
he undergo a surgical implant of a trial, spinal cord
stimulator.53 The plaintiff then sought an order compelling the employer to pay for the surgery under the cure
obligation.54
The court described a spinal cord stimulator as an
implanted, programmable neurotransmitter that interrupts pain signals to the brain by delivering small
electrical impulses to the spinal column through stimulation leads.55 Plaintiffs treating physician initially
stated that the implant was non-curative, but later
rescinded his use of the term, claiming that he was
unaware of its legal meaning.56 The employers
medical expert stated that the stimulator was a palliative
technique that did not address the cause of the patients
pain.57
The court held that [e]ven if the distinction between
curative and palliative treatment is relevant before
maximum cure has been reached, cure includes all treatment that improves function. A treatment is curative
even if the increased function is accomplished primarily
through pain relief.58 The employer was therefore
ordered to pay for the stimulator implant under the
cure obligation.59
50
Weeks Marine, Inc., 2015 U.S. Dist. LEXIS 8489, at *16.
51
42

78536, at *6 (citing Grubbs v. Gulf International Marine Inc.,
13 F.3d 168, 170 (5th Cir. 1994)).
43

78536, at *6.
44

78536, at *6-7.
Weeks Marine, Inc., 2015 U.S. Dist. LEXIS 8489, at *5, 18

(citing Hall v. Diamond M. Co., 732 F.2d 1246, 1249 (5th Cir.
1984); Baker v. Raymond International, 656 F.2d 173, 178
(5th Cir. 1981)).
52
Hedges v. Foss Mar. Co., 2015 U.S. Dist. LEXIS 10510,
*1-2 (W.D. Wash. Jan. 29, 2015).
53
Hedges, 2015 U.S. Dist. LEXIS 10510, at *1-2.
54
In re Weeks Marine, Inc., 2015 U.S. Dist. LEXIS 8489, *3,

2015 AMC 507 (M.D. La. 2015).
55
Hedges, 2015 U.S. Dist. LEXIS 10510, at *2.
46
56
47
57
48
Weeks Marine, Inc., 2015 U.S. Dist. LEXIS 8489, at*3.
58
Ruiz v. Shell Oil Co., 413 F.2d 310 (5th Cir. 1969).
59
45
49
26
IX. Application of the McCorpen Defense

60
In McCorpen v. Central Gulf Steamship Corp., the

U.S. Court of Appeals for the Fifth Circuit held that a
seaman who knowingly fails to disclose a pre-existing
physical disability during his or her pre-employment
physical examination may not recover maintenance
and cure. In order to establish a McCorpen defense,
an employer must show that (1) the claimant intentionally misrepresented or concealed medical facts; (2) the
non-disclosed facts were material to the employers
decision to hire the claimant; and (3) a connection
exists between the withheld information and the injury
complained of in the lawsuit.61
In Meche v. Doucet,62 the U.S. Court of Appeals for the
Fifth Circuit reversed the district courts denial of the
McCorpen defense and vacated the award of punitive
damages for failure to pay maintenance and cure.63 The
plaintiff had aggravated a pre-existing condition in his
lumbar spine while in the service of the vessel, but had
concealed the condition during the pre-employment
process.64 Although the plaintiffs current employer
(Key) did not subject him to a pre-employment examination or interview, Keys predecessor did, and Key
was thereafter entitled to rely on the plaintiffs
representations.65 Therefore, the objective, intentional
concealment standard applied to the McCorpen
analysis.66
The Court rejected the plaintiffs argument that he did
not conceal his medical history because he did not
personally complete the medical questionnaire.67 The
plaintiff claimed that his niece had completed the questionnaire and he had simply signed it without first
reading it. He also claimed that he had verbally notified
his employer of his past injuries after completing the
questionnaire. The court held that if a seaman intentionally provides false information on a pre-employment
First Quarter 2016

medical questionnaire and certifies that the information
therein is true and correct, that seaman may not later
argue that his concealment was not intentional based
on his statement, which the employer disputed, that he
verbally disclosed medical information that contradicted
the written questionnaire.68
The district court decision in Bosarge v. Cheramie
Marine LLC,69 seemingly came to the opposite conclusion of the Fifth Circuit in Meche. Here, the defendant
sought to invoke the McCorpen defense where the plaintiff suffered a back injury prior to the incident at issue
and he did not disclose that injury on the medical questionnaire he was provided prior to his employment with
the defendant. Prior to his employment, the plaintiff
visited an orthopedic clinic complaining of lower back
pain.70 He was diagnosed with lumbar degenerative disk
disease and given a physical therapy home exercise
program and pain medicine, which prescription he thereafter filled twice.71
The district court denied the employers Motion for
Summary Judgment on the McCorpen defense. It held
that genuine issues of facts existed as to whether the
concealed information would have affected the employers decision to hire the plaintiff, as his prior injury was
extremely minor and that the plaintiff had subsequently been cleared for full work duty by a prior
employer.72 Specifically, the court relied on MRI
results from a prior employer in 2013 that were returned
normal, clearing plaintiff to work full duty.73
In Foret v. St. June,74 the district court applied
the McCorpen defense, notwithstanding that the fact
that the plaintiff was not required to complete a preemployment medical questionnaire or undergo a preemployment physical. The plaintiff, who injured his
back, argued that he did not conceal information
regarding his pre-existing injuries because he voluntarily informed the employer that he had previously had
60
McCorpen v. Central Gulf S.S. Corp., 396 F.2d 547 (5th

Cir. 1968).
61
Meche v. Doucet, 777 F.3d 237, 244-45 (citing Brown v.

Parker Drilling Offshore Corp., 410 F.3d 166, 171 (5th Cir.
2005)).
62
63
Meche v. Doucet, 777 F.3d 237 (5th Cir. 2015).

Meche, 777 F.3d 237, 249.
68
Meche, 777 F.3d 237, 248.
69
Bosarge v. Cheramie Marine LLC, 2015 U.S. Dist. LEXIS

101768, at *7 (E.D. La. Aug. 4, 2015).
70
Bosarge, 2015 U.S. Dist. LEXIS 101768, at *7.
71
Bosarge, 2015 U.S. Dist. LEXIS 101768, at *7.
72
64
Meche, 777 F.3d 237, 241.
65
Bosarge, 2015 U.S. Dist. LEXIS 101768, at *9 (emphasis

added).
Meche, 777 F.3d 237, 246.
73
66
Meche, 777 F.3d 237, 246.
74
67
Meche, 777 F.3d 237, 247-48.
Bosarge, 2015 U.S. Dist. LEXIS 101768, at *9-10.
Foret v. St. June, LLC, 2014 U.S. Dist. LEXIS 127317, at

*8-9 (E.D. La. Sept. 11, 2014).

neck and shoulder surgery.75 However, the plaintiff
remained silent regarding his pre-existing back
injuries.76 More importantly, the plaintiff told his
employer that he was healed at the time of the interview, which was entirely inconsistent with his
medical history.77 Because the employer showed that
plaintiff knew that the disclosure of his pre-existing
back and neck injuries was plainly desired by the
employer and the plaintiff had intentionally concealed
and misrepresented the existence and extent of these
injuries, the first prong of the McCorpen defense was
satisfied.78
X. Punitive Damages
In Campbell v. Offshore Liftboats, LLC,79 the plaintiff
made a claim for punitive damages, alleging that the
defendant had delayed its maintenance and cure investigation and failed to pay him a proper rate of
maintenance. The court disagreed and granted the defendants Motion for Summary Judgment, dismissing the
punitive damages claim.80 Upon receipt of the plaintiffs
maintenance and cure demand, the defendant began an
investigation into his work history and the applicable
law to determine, first, whether the plaintiff was a
seaman under the Jones Act entitled to such payments,
and second, the appropriate rate of compensation
without proof of the food, lodging, or medical expenses
incurred by plaintiff.81 The defendant instituted maintenance and cure payments within 10 business days,
which the court found to be a reasonable amount of
time to conduct a diligent investigation.82 Furthermore, absent any supporting documentation provided
by the plaintiff as to his daily expenses, $35 per day
was a reasonable maintenance rate within the Fifth
Circuit. 83 Citing lack of any proof, the court also
rejected plaintiffs contention that his punitive
damages claim should have been maintained on the
basis that the defendant might one day, in bad faith,
27
First Quarter 2016

terminate the maintenance and cure payments before
he reached maximum medical improvement.84
In Hicks v. Tug Patriot,85 the U.S. Court of Appeals for
the Second Circuit affirmed a decision that a shipowner
was liable for punitive damages when it prematurely
terminated maintenance and cure benefits. The plaintiff
injured his shoulder in the service of the vessel and
subsequently underwent surgery.86 The shipowner
hired a private investigator, who videotaped the plaintiff
planting a small tree and playing with his grandson.87
When the plaintiffs doctor requested authorization for
an additional MRI scan, he was shown this footage and a
document detailing the purported physical requirements
of the plaintiffs job.88 Based on this video and the
apparently false suggestion by the shipowner that the
plaintiffs job required only light lifting, the doctor
determined that the plaintiff was fit for duty. The shipowner then terminated his maintenance and cure
benefits. Appellant accordingly informed Hicks that it
would terminate maintenance and cure payments effective May 9, 2010.89
Several months later, the plaintiff sought continuing
care from a second doctor, who diagnosed a recurrent
rotator cuff tear.90 Ultimately, the doctor recommended
another surgery plus six months of rehabilitation to
repair the additional damage.91 Under financial pressure
caused by the meager maintenance of $15.00 a day
paid to the plaintiff, which was terminated, the plaintiff
returned to work while still injured.92 Severe financial
difficulties caused him to miss some of his physical
therapy appointments.93 His house was put into foreclosure and he was unable to pay for health insurance.94
The jury found that appellants failure to pay maintenance and cure was unreasonable and willful and
84
Foret, 2014 U.S. Dist. LEXIS 127317, at *10.
Campbell, 2015 U.S. Dist. LEXIS 34981 at *10.
85
Foret, 2014 U.S. Dist. LEXIS 127317, at *10.
Hicks v. Tug Patriot, 783 F.3d 939, 941 (2d Cir. 2015).
86
Foret, 2014 U.S. Dist. LEXIS 127317, at *10-11.
Hicks, 783 F.3d 939, 941.
87
Hicks, 783 F.3d 939, 941.
88
Hicks, 783 F.3d 939, 941.
89
Campbell v. Offshore Liftboats, LLC, 2015 U.S. Dist.

LEXIS 34981, 2015 AMC 1075 (E.D. La. Mar. 20, 2015).
Hicks, 783 F.3d 939, 941.
90
Hicks, 783 F.3d 939, 941.
80
91
Hicks, 783 F.3d 939, 941.
81
Campbell, 2015 U.S. Dist. LEXIS 34981 at *8-10.
92
Hicks, 783 F.3d 939, 941.
82
93
Hicks, 783 F.3d 939, 941.
94
Hicks, 783 F.3d 939, 941.
75
76
77
78
Foret, 2014 U.S. Dist. LEXIS 127317, at *11. The second

and third prongs of the McCorpen defense were also satisfied.
79
83

awarded $123,000 in punitive damages.95 Based on the
finding of willfulness, the district court, upon a motion
under Fed. R. Civ. P. 54(d), granted the plaintiff an
additional $112,083.77 in attorneys fees.96 The
Second Circuit affirmed the decision, diverging from
prior precedent and holding that the amount of recoverable punitive damages is not limited to the amount of
reasonable attorneys fees, which are available when the
refusal to pay maintenance is willful.97
Following a bench trial, the district court in Jefferson v.
Baywater Drilling,98 awarded punitive damages where
the defendant had performed an unreasonable and inadequate maintenance and cure investigation, prior to
denying benefits. The plaintiff had developed a disabling
skin condition while working as a seaman aboard the
defendants vessel.99 The shipowners human resources
manager conducted the maintenance and cure investigation, which consisted of speaking with plaintiffs
coworkers and reviewing incident reports.100 The shipowner ultimately concluded that the plaintiffs injuries
were caused by a pre-existing condition related to
herpes or a reaction to the medicine he allegedly brought
aboard the vessel.101 There was no further investigation
of plaintiffs claims, the shipowner did not review the
plaintiffs medical records, and the shipowner did not
request that the plaintiff be tested for herpes or that any
95
Hicks, 783 F.3d 939, 941.
96
Hicks, 783 F.3d 939, 941.
28
First Quarter 2016

tests be done to establish a connection between the
plaintiffs skin condition and the medication he allegedly
brought to work.102
The court found the maintenance and cure investigation
was impermissibly lax.103 The denial of maintenance
and cure was arbitrary and capricious and the plaintiff
was entitled to compensatory damages, punitive
damages, and attorneys fees.104 The court awarded
$10,000 in punitive damages.105
These decisions demonstrate that maintenance and cure
obligations continue to be taken very seriously by the
courts. Counsel for seafarers, employers, and vessel
owners should be cognizant of recent decisions affecting
maintenance and cure.
*****
Aaron Greenbaum is a founding member of Pusateri,
Barrios, Guillot & Greenbaum, LLC, in New Orleans,
Louisiana. He is a graduate of Tulane University Law
School. His practice focuses on brown water and blue
water admiralty and maritime issues, including
personal injury and maintenance and cure.
97
Hicks, 783 F.3d 939, 943 (overruling McMillan v. Tug

Jane A. Bouchard, 885 F. Supp. 452, 466 (E.D.N.Y. 1995);
Kraljic v. Berman Enter., Inc., 575 F.2d 412, 415-16 (2d Cir.
1978)).
98
Jefferson v. Baywater Drilling, LLC, 2015 U.S. Dist.
LEXIS 9314, at *20, 2015 AMC 571 (E.D. La. Jan. 27, 2015).
102
Jefferson, 2015 U.S. Dist. LEXIS 9314, at *9.
99
103
104
Jefferson, 2015 U.S. Dist. LEXIS 9314, at *17-18.
105
100
101
29
First Quarter 2016
VOID V. VOIDABLE: THE EFFECT OF THE BREACH OF THE DUTY OF UTMOST

GOOD FAITH IN MARINE INSURANCE AND ITS FUTURE IN LIGHT OF THE UK
INSURANCE ACT 2015
By Alberto J. Castan~er1
Introduction
Few doctrines of marine insurance are as old as the duty
of uberrimae fidei (utmost good faith). In England, it
was adopted in the 18th Century by Lord Mansfield in
the pivotal case of Carter v. Boehm,2 later codified in
the Marine Insurance Act 1906,3 and recently abandoned through the insurance reforms enacted in the
Consumer Insurance (Disclosure and Representations)
Act 2012 (CIDRA) and the Insurance Act 2015.
In the United States, courts sitting in admiralty have
applied the doctrine for almost 200 years. The year
2015 saw a great deal of judicial activity regarding the
duty of utmost good faith. However, uniformity as to the
application of the doctrine and the effects of the breach
of the duty is nowhere near the horizon. The recent
decisions out of the First, Eight, and Ninth Circuits
have all moved towards further entrenching the doctrine
in American marine insurance law instead of following
the international trend of jettisoning what has been
called an outdated and draconian rule of law. In
addition, these three decisions highlight inconsistency
as to the effects of the breach of the duty, mainly,
whether the policy is voidable or void since its inception
(ab initio).
This article will briefly examine the history of the duty
of utmost good faith in marine insurance, address the
latest cases on the doctrine, and discuss the implications
that the recent UK legislative reform may have in the
United States.
The Doctrine is Entrenched but Not Uniform: The
Void v. Voidable Conundrum
There is very little doubt that the duty of utmost good
faith is currently an entrenched principle of U.S. maritime law. As early as 1828 the U.S. Supreme Court in
1
This paper was first presented at the 2015 Fall Meeting of
The Maritime Law Association of the United States in
Bermuda.
2
Carter v. Boehm (1766) 3 Burr 1905.
6 Edw. 7, ch. 41, 17, 18 (1906).
MLanahan v. Universal Ins. Co.4 believed that uberrimae fidei should be a part of marine insurance. Since
then, except for the Fifth Circuit, every federal Court of
Appeals that has been faced with the issue of whether or
not the doctrine is a federally entrenched rule of insurance law has answered the question in the affirmative.5
The concept is simple: the insured in a maritime insurance contract is required to disclose to the insurer all
known circumstances and facts that materially affect the
insurers risk. Material facts are those which can
possibly influence the mind of a prudent and intelligent
insurer in determining whether it will accept a risk.
There is no disagreement as to what the duty requires
from the insured.6 However, there seems to be some
discrepancies in the case law as to the consequences
of breaching the duty of utmost good faith. While
some courts have held that the breach of the duty
renders the policy void ab initio, others have concluded
that the policy is merely voidable at the insurers option.
Surprisingly, no published opinion has devoted much
ink to explaining why the policy should be void or
voidable.
The 2015 cases serve to illustrate the inconsistencies. In
Lloyds v. San Juan Towing, the U.S. Court of Appeals
for the First Circuit affirmed the district courts judgment for the insurer based on the insureds breach of the
4
MLanahan v. Universal Ins. Co., 26 U.S. (1 Peters) 170
(1828) (MLanahan).
5
See, e.g., Lloyds v. San Juan Towing & Marine Servs., 778
F.3d 69, 82 (1st Cir. 2015) (San Juan Towing); Knight v.
U.S. Fire Ins. Co., 804 F.2d 9, 13 (2d Cir. 1986) citing Puritan
Ins. Co. v. Eagle S.S. Co. S.A., 779 F.2d 866, 870 (2d Cir.
1985); AGF Marine Aviation & Transp. v. Richard C. Cassin
Cit Grp./Sales Fin., Inc., 544 F.3d 255 (3d Cir. 2008); N.Y.
Marine & Gen. Ins. Co. v. Contl Cement Co., LLC, 761 F.3d
830, 837 (8th Cir. 2014) (Contl Cement Co.); Certain
Underwriters at Lloyds v. Inlet Fisheries Inc., 518 F.3d 645,
650-54 (9th Cir. 2008); HIH Marine Servs. v. Fraser, 211 F.3d
1359, 1362 (11th Cir. 2000). See also Albany Ins. Co. v. Anh
Thi Kieu, 927 F.2d 882, 889 (5th Cir. 1991) ([T]he uberrimae
fidei doctrine is not entrenched federal precedent.).
6
Although the duty is reciprocal between the insured and the

insurer, virtually every reported case deals with nondisclosures
and misrepresentations made by the insured while procuring
insurance and not the other way around.

duty of utmost good faith for misrepresenting the
floating dry docks value and failing to disclose the
poor condition of its hull. But, the First Circuit modified
the district courts holding to reflect that the contract
was voidable, not void ab initio.7 The court did not put
a lot of effort in explaining why. The First Circuit
merely concluded that in the event that insured defaults,
the insurer may void the policy at its option.8
Just a few months later, the Eighth Circuit further
expanded the doctrine in St. Paul Fire & Marine Ins.
Co. v. Abhe & Svoboda, Inc.9 In 2014, the Eighth
Circuit had held that the breach of the duty rendered
the contract of marine insurance voidable.10 But in
2015, the court was faced with the issue of deciding
whether a non-disclosure of a material fact made by
the insured while procuring insurance automatically
gives the insured the right to void the policy or
whether, in addition to demonstrating that the undisclosed fact was material, the insurer must
demonstrate that it was relied upon when it decided to
underwrite the risk.11 In Abhe & Svoboda, the insured
failed to disclose a prior loss of one of the insured barges
and the insurer sought a judgment declaring the policy
void ab initio based on uberrimae fidei. The parties
agreed that the insured was required to disclose all material facts to the insurer, but they disputed whether there
was an additional element to an insurers claim that a
policy is void for non-disclosure.12
The Eighth Circuit decided to follow the Second
Circuits decision in Puritan Insurance Co. v. Eagle
Steamship Co. S.A.13 and held that an insurer seeking
to avoid a policy must show reliance on the insureds
non-disclosure, regardless of whether the insurer had
knowledge of the undisclosed material fact at the time
that it decided to issue the policy.14 After finding that
the insurer must demonstrate causal connection
7
San Juan Towing, 778 F.3d 69, 83.
San Juan Towing, 778 F.3d 69, 83 (citing Windsor Mount

Joy Mut. Ins. Co. v. Giragosian, 57 F.3d 50, 54-55 (1st Cir.
1995)).
St. Paul Fire & Marine Ins. Co. v. Abhe & Svoboda, Inc.,
798 F.3d 715 (8th Cir. 2015) (Abhe & Svoboda).
10
See Contl Cement Co., 761 F.3d 830, 837.
11
Abhe & Svoboda, 798 F.3d 715, 719.
12
Abhe & Svoboda, 798 F.3d 715, 719.
30
First Quarter 2016

between the non-disclosure or misrepresentation by
the insured and the underwriting of the risk, the
Eighth Circuit stated that its conclusion was further
supported by need to prevent fundamentally unfair and
unequitable insurance practices. The court stated:
St. Paul Fires proposed rule also would create
a moral hazard on the part of marine insurers. It
would have the perverse effect of encouraging
insurers to assume unreasonable risks and to
issue insurance policies that they otherwise
would not have issued. Under the rule
proposed by St. Paul Fire, if an insurer
knows that an applicant for insurance failed
to disclose or misrepresented a fact that other
prudent insurers may deem to be material, that
insurer would have an incentive to issue the
policy anyway, collect premiums from the
insured, and then use the doctrine of uberrimae
fidei to void the policy if an accident occurs
and the insured seeks to invoke the policys
protection. Allowing an insurer to void a
policy based on the uberrimae fidei defense
in that situation would not further the
purpose of the doctrine to protect the insurer
against liability caused by an insureds failure
to act in good faith.
Therefore, if San Juan Towing and Abhe & Svoboda are
read together, one could argue that if an insured is found
to have breached the duty of utmost good faith by failing
to disclose or misrepresenting material information to
the insurer, the latter may only avoid the policy if it
can show that the non-disclosure or misrepresentation
was relied upon when it decided to undertake the risk
and establish the terms to do so. The stark difference
between these two decisions and the holding of the
Eleventh Circuit in AIG Centennial Ins. V. ONeill is
night and day.15
In ONeill the sole member of a limited liability
company that owned the yacht, entrusted his secretary
with filling out the application for insurance, which the
court characterized as a recipe for error. And indeed it
was. The secretary, without instructions or assistance
from either ONeill or his insurance broker, filled out
the application and inadvertently misrepresented who
the owner was by listing ONeill as the owner instead
13
Puritan Insurance Co. v. Eagle Steamship Co. S.A., 779

F.2d 866 (2d Cir. 1985).
14
Abhe & Svoboda, 798 F.3d 715, 720.
15
AIG Centennial Ins. Co. v. ONeill, 782 F.3d 1296 (11th

Cir. 2015) (ONeill).

of the company. She also failed to disclose a prior loss
ONeill had when he lost a boat due to a fire. And last
but not least, the secretary listed the purchase price as
$2.35 million when it was really $2.125 after the
previous owner adjusted the price considering that
some repairs had to be made.
On its first voyage and after spending close to a quarter
million dollars in repairs, the yachts hull presented
several structural defects which marine surveyors
concluded rendered the yacht unseaworthy. ONeill
filed a claim under the policy and the insurer responded
by filing a declaratory judgment action seeking affirmation that the insurance policy was void ab initio. The
district court held that the policy was void ab initio in
light of the misrepresented purchase price and ONeills
non-disclosed prior loss history. The judgment was
affirmed. According to the Eleventh Circuit when an
insured conceals or misrepresents a material fact he
commits manifest fraud, which avoids the policy16
regardless of whether the misrepresentation is willful
or accidental, or results from mistake, negligence, or
voluntary ignorance. The court then affirmed the district
courts findings that misrepresentations were made in
the application and that the misrepresented purchase
price was material as demonstrated by the testimony
of two underwriters.
Despite making an analysis almost identical to that of
the First and Eight Circuits of the insureds breach of the
duty and the insurers reliance on the misrepresentations
and non-disclosures, the Eleventh Circuit concluded that
the policy was void ab initio instead of voidable. But
why? Historically under common law, an insurance
policy has been considered a contract requiring the
utmost good faith, and any misrepresentation of facts
that are material to the risk being insured against, or
any failure by the insured to disclose conditions
affecting the risk could render a contract voidable at
the insurers option.17 In England, from whence the
doctrine was adopted, the remedy has always been
that the insurer may avoid the policy.18 The leading
Maritime Law treatises agree that the consequence of
the breach of the duty of utmost good faith is that the
16
ONeill, 782 F.3d 1296, 1303 quoting MLanahan, 26 U.S.

(1 Peters) 170, 185.
17
3-16 New Appleman on Insurance Law Library Edition

16.08.
18
Marine Insurance Act 1906, 18(1); [1993] 1 Lloyds Rep.

496, at 505-506 VERIFICAR.
31
First Quarter 2016

underwriter may avoid the policy.19 But still, according
to ONeill, once the duty has been breached, the policy
is automatically rendered void ab initio, not by the election of the insurer.20
The distinction between void and voidable is often of
great practical importance.21 A voidable agreement
is valid until annulled. It is capable of being affirmed or
rejected at the option of one of the parties.22 On the other
hand, an agreement which is void ab initio is null
from the beginning, as from the first moment when a
contract is entered into often because it seriously offends
public policy.23 Thus, while the term voidable
describes a valid act that may be voided later, the term
void ab initio describes an invalid act that never came
to life but may be ratified.
The Void v. Voidable dilemma is of great importance in
the context of uberrimae fidei. For example, some
argue that in both Britain and the United States an
insurer can waive the breach of the duty of utmost
good faith.24 However, if breach of duty of utmost
good faith voids a policy ab initio, an insured may not
raise affirmative defense of waiver or estoppel.25 An
insurance policy found to be void ab initio is nothing
more than a stillborn that never took its first breath. The
policy never came to life and one cannot waive a right
that never existed in the first place. Consequently, the
waiver defense would be available only on those judicial
districts where the breach turns the policy voidable.
The Effect of the UK Insurance Act 2015 on
Uberrimae Fidei in the United States
The entrenchment of the doctrine in federal maritime
law and the above discussed circuit splits may become
a thing of the past sooner than expected. Even though
19
G. Gilmore & C. Black, The Law of Admiralty 2-6, at 62

(2d ed. 1975); 2 T. Schoenbaum, Admiralty and Maritime Law
19-14 at 319 (4th Ed., 2004) (describing rescission of the
contract as the universal remedy in both Britain and the
United States).
20
ONeill, 782 F.3d 1296, 1303.
21
Blacks Law Dictionary at 1568 (7th ed. 1999).
22
23
24
2 T. Schoenbaum, Admiralty and Maritime Law 19-14 at

318 (4th Ed., 2004).
25
See Certain Underwriters at Lloyds, London v. Giroire,

1998 AMC 2153, 2160, 27 F.Supp.2d 1306, 1312 (S.D. Fla.
1998).

the doctrine has been adopted almost unanimously in
the United States and has survived despite strong opposition and criticism by commentators, scholars, and
judges alike, the enactment of the Insurance Act 2015
and the CIDRA in the United Kingdom could put a stop
to the application of the doctrine on this side of the
pond as well.
Historically, the Supreme Court has stated that efforts
should be made in the area of marine insurance to
preserve the uniformity between English and American
law.26 In Wilburn Boat Co. v. Firemans Fund Ins.
Co., 27 Justice Frankfurter noted in his concurring
opinion that [t]he business of marine insurance . . .
demand[s] application of a uniform rule of law designed
to eliminate the vagaries of state law and to keep
harmony with the marine insurance laws of other great
maritime powers. As Justice Reed put it in his Wilburn
dissent [o]ur admiralty laws, like our common law,
came from England. As a matter of American judicial
policy, we tend to keep our marine insurance laws in
harmony with those of England.28
The reasons behind the judicial desire for uniformity
in the marine insurance law with England are still
present and may be even stronger. Today, the British
marine insurance market is the third largest in the world
after the U.S. and Japan.29 In fact, the London Market30
is the only place in the world where all of the largest
insurers and reinsurers are represented.31 Although the
U.S. marine insurance market is substantial, the operations of British concern are still of high importance in
26
Calmar Steamship Corp. v. Scott, 345 U. S. 427, 442-443
(1953); Standard Oil Company of New Jersey v. United
States, 340 U.S. 54, 59, 1951 AMC 1, 5 (1950); Queen Insurance Company of America v. Globe & Rutgers Fire Insurance
Company, 263 U.S. 487, 493, 1924 AMC 107, 109-10 (1924).
27
Wilburn Boat Co. v. Firemans Fund Ins. Co., 348 U.S.

310, 323 (1955) (Wilburn Boat) (Frankfurter, J., concurring
in the result).
32
First Quarter 2016

this country.32 The U.S. Supreme Court and Article III
courts sitting in admiralty have expressly announced
and followed a policy of deference to the English decisions in the field, recognizing not only the longer
experience of those courts but also the great desirability
of uniformity, given the close connections of the American and British insurance markets.33 Especially is
uniformity desirable where, as here, the particular
form of words employed originated in England.34
CIDRA became effective in 2012 and regulates
consumer insurance, such as marine insurance for
recreational vessels. To ease the draconian effects of
pre-contractual non-disclosures and misrepresentations
and to simplify the legal framework, CIDRA replaced
the duty of utmost good faith with a duty on consumers
to take reasonable care not to make misrepresentations
when applying for insurance.35 An insurer may only
avoid the policy entirely where the breach of the duty
of fair presentation is deliberate or reckless and where
the insurer can show that he would not have entered into
the contract had he known the information or would
only have done so on different terms.36 If the insurer
is unable to show a deliberate or reckless breach, it
may only refuse the claim in its entirety and avoid the
policy if it can show that he would not have written
the policy at all.37
The Insurance Act 2015 was enacted on February 12,
2015 (just days after the San Juan Towing decision), and
becomes effective in August 2016. The Insurance Act
regulates non-consumer insurance. It will also reform
insurance contract law in relation to misrepresentation
and non-disclosure, warranties, and remedies for fraudulent claims. The reform will make it harder for
insurers to avoid claims as a result of technical breaches
by the insured.
The Insurance Act places upon the insured a duty to
make a fair representation of the risk.38 This includes
requirements to: (1) make a clear and accessible disclosure of every material circumstances which the
28
Wilburn Boat Co., 348 U.S. 310, 325 (Reed dissenting) and
citing Queen Ins. Co. of America v. Globe & Rutgers Fire Ins.
Co., 263 U.S. 487, 493 (1924); Calmar Steamship Corp. v.
Scott, 345 U. S. 427, 442-443 (1953).
32
G. Gilmore & C. Black, The Law of Admiralty 2-2, at 54.
33
G. Gilmore & C. Black, The Law of Admiralty 2-2, at 56.
29
34
See Munich Re Economic Research, Insurance Market

Outlook, May 2015.
Standard Oil Company of New Jersey v. United States, 340

U.S. 54, 59, 1951 AMC 1, 5 (1950).
30
35
CIDRA 2(2).
36
CIDRA 5, and Schedule 1.
37
CIDRA 5, and Schedule 1.
38
Insurance Act 2015 3(1).
The term London Market is commonly used to refer to all

the international and United Kingdom insurance and reinsurance practitioners based in London.
31
See http://www.fao.org/3/a-i0744e/i0744e02.pdf (last

visited on January 25, 2016).

insured knows or ought to know; (2) disclose sufficient
information to put a prudent insurer on notice that it
needs to make further enquiries; and (3) ensure that
any representations as to a matter of fact are substantially correct.39 The Act repealed sections 18, 19, and 20
of the Marine Insurance Act 1906 which dealt with
disclosures by the insured and representations made
while applying for insurance.
These recent paradigmatic changes mark a shift in
English insurance law and will justify insurers taking
an active role while assessing the risks they underwrite
rather than a passive posture in relying on the insured
and its broker to provide all relevant information. Most
importantly, insurers may no longer avoid a policy of
marine insurance in light of any breach of the duty of
utmost good faith since they would have the same remedies provided under CIDRA.
In addition to England, in the United States and elsewhere the doctrine of utmost good faith is increasingly
being questioned or repudiated.40 Modern state statutory developments and applicable case law have shifted
the initial underwriting burden onto the insurer.41 Most
state insurance codes were created to protect the general
public from what has been called adhesionary practices in consumer insurance policies.42 In sum, it
39
Insurance Act 2015 3(3).
40
See Thomas J. Schoenbaum, The Duty of Utmost Good

Faith in Marine Insurance Law: A Comparative Analysis of
American and English Law, 29 J. Mar. L. & Com. 1, (1998)
citing Albany Ins. Co. v. Anh Thi Kieu, 927 F.2d 882, 1991
AMC 2211 (5th Cir.), cert. denied, 502 U.S. 901 (1991) (the
principle of utmost good faith is not entrenched federal
admiralty law); See also Windsor Mount Joy Mut. Ins. Co.
v. Giragosian, 57 F.3d 50, 1995 AMC 2542 (1st Cir. 1995)
("the sole remaining vestige of the doctrine is in maritime
insurance law"); Mutual & Fed. Ins. Co. v. Oudshoorn Municipality, (1985) 1 A.D. 429, 433 (S.A. Sup. Ct. App. Div.)
(South African court said that the doctrine of utmost good faith
is an alien, vague, useless expression without any particular
meaning in law. . . . Our law of insurance has no need for
uberrimae fidei and the time has come to jettison it.); Penn
Mut. Life Ins. Co. v. Mechanics Sav. Bank & Trust Co., 72 F.
413, 434 (6th Cir. 1896) (held that in non-marine insurance
no failure to disclose a fact material to the risk, not inquired
about, will avoid the policy, unless such nondisclosure was
with intent to conceal . . .; that is, unless the nondisclosure was
fraudulent.).
33
First Quarter 2016

seems that what has become an entrenched principle
of federal insurance law has been slowly but surely
rooted out by modern legislation of the states and
other nations.
CONCLUSION
The uberrimae fidei doctrine is in fact antiquated.
It came about at a time when sailing ships in faraway
seas were insured in London by underwriters who could
get no information except from the shipowners.43
Those days are over. Some argue the doctrine
no longer has a place in todays insurance market, especially in this day in age where insurers have immediate
access to data and they share information about their
insureds and claims. It remains to be seen whether the
recent insurance law reform in the UK and the modern
trends in the insurance markets will be enough for the
United States to join the international jettisoning of
uberrimae fidei.
*****
Alberto J. Castan~er is a Partner at Castan~er Law
Offices, P.S.C., San Juan, Puerto Rico; Adjunct
Professor of Maritime Law, Interamerican University
of Puerto Rico School of Law; Chair, Maritime Law
Association of the United States Sub-Committee on
U.S. Customs Brokers and Freight Forwarders; J.D.
2006 Interamerican University of Puerto Rico School
of Law; LL.M. 2008, Tulane Law School.
41
3-16 New Appleman on Insurance Law Library Edition

16.08.
42
Mitchell J. Popham & Chau Vo, Misrepresentation and

Concealment in Marine Insurance Contracts: An Analysis
of Federal and State Law within the Ninth Circuit, 11
U.S.F. Mar. L.J. 99, 112 (1999).
43
Stecker v. American Home Fire Assurance Co., 84 N.E. 2d

797, 799 (N.Y. 1949).
34
First Quarter 2016
WINDOW ON WASHINGTON
HAVANA: DAY DREAMING?

By Bryant E. Gardner
The Obama Administration took significant steps to
normalize relations with Cuba during 2015 that are
likely to turn into concrete market opportunities for the
maritime industry in the near term, particularly passenger
cruise and ferry traffic. Although the embargo remains
in place and many in Congress oppose the Presidents
initiative, there seems little likelihood of meaningful
legislative action to stop it. And once the door has been
cracked open and commerce starts to flow between the
United States and Cuba, it will take on its own momentum
becoming increasingly difficult for Congress, or the next
President, to undo what may become a pillar of President
Obamas foreign policy legacy.
Announcing the changed policy on December 17, 2014,
the President defined the embargo as a failure that has no
place in the post-Cold War world where Communist
China is our largest trading partner, and he further
called for a reexamination of Cubas designation as
a state sponsor of terrorism amid threats from stateless
fanatics such as al Qaeda and the Islamic State in
Iraq and the Levant.1 Additionally, President Obama
indicated that the initiatives to increase travel, commerce, and information flow with Cuba express his
Administrations belief in the power of people-topeople engagement, or cultural exchanges, because
[n]obody represents Americas values better than the
American people and this contact will ultimately do
more to empower the Cuban people.2 However, he
frankly acknowledged that the statutory nature of the
embargo curtails what he can do to loosen it, and
committed to engage Congress seeking repeal.
In January 2015, the U.S. Treasury Department Office
of Foreign Assets Control (OFAC) and the U.S.
Commerce Department Bureau of Industry and Security
(BIS), the two main agencies responsible for administering U.S. economic sanctions against Cuba,
announced that the applicable regulations3 were being
amended, effective January 16, 2015, to implement the
Address to the Nation on United States Policy Toward Cuba,

1 PUB. PAPERS 937 (Dec. 17, 2014), available at https://
www.whitehouse.gov/the-press-office/2014/12/17/statementpresident-cuba-policy-changes.
2
3
Id.
31 C.F.R. Part 515 (OFAC) and 15 C.F.R. Parts 730-774

(BIS).

Presidents plan.4 Historically, travel to or trade with
Cuba or Cuban nationals required persons subject to
U.S. jurisdiction to obtain a specific license from BIS
and OFAC. Under the new policy, the 12 categories of
authorized travel which previously required specific
licenses issued by OFAC became authorized by a
general license such that individuals are now able to
travel to Cuba without obtaining advance authorization,
among other changes applicable to remittances, financial
services, telecommunications, insurance, travel and air
carrier services for persons authorized to travel to
Cuba, and other transactions. Additionally, the changes
enable the export and re-export of certain categories of
items to Cuba intended to empower the nascent Cuban
private sector including building materials for private
buildings; goods for use by private sector entrepreneurs,
such as auto mechanics, barbers, and restaurateurs; and
tools for agricultural activity.5 The agencies also
announced a general license authorizing foreign vessels
to enter the United States after engaging in trade with
Cuba.6
Then, in July 2015, the Administration reestablished
diplomatic relations with Havana and reopened the
embassy shuttered since 1961, the year President
Obama was born.7 In making the announcement, the
President again emphasized his intentions to allow
greater travel and people-to-people and commercial
ties between the United States and Cuba. Calling the
softening a choice between the future and the past he
called upon Congress to take steps to lift the embargo.8
Later in July, BIS issued its final rule rescinding Cubas
4
Cuba: Providing Support for the Cuban People, 80 Fed. Reg.
2,286 (BIS Jan. 16, 2015); Cuban Assets Control Regulations,
80 Fed. Reg. 2,291 (OFAC Jan. 16, 2015); U.S. Department of
the Treasury, Fact Sheet: Treasury and Commerce Announce
Regulatory Amendments to the Cuba Sanctions, Jan. 15, 2015,
https://www.treasury.gov/press-center/press-releases/Pages/
jl9740.aspx (last visited January 25, 2016).
5
Cuba: Providing Support for the Cuban People, 80 Fed. Reg.

2,286 (BIS Jan. 16, 2015).
6
U.S. Department of the Treasury, Fact Sheet: Treasury and

Commerce Announce Regulatory Amendments to the Cuba
Sanctions, Jan. 15, 2015, https://www.treasury.gov/presscenter/press-releases/Pages/jl9740.aspx (last visited January
25, 2016).
7
Remarks on the Reestablishment of Diplomatic Relations
and Permanent Diplomatic Missions by the United States
and Cuba, 1 PUB. PAPERS 474 (July 1, 2015), available at
https://www.whitehouse.gov/the-press-office/2015/07/01/
statement-president-re-establishment-diplomatic-relationscuba (last visited January 25, 2016).
8
Id.
35
First Quarter 2016

designation as a state sponsor of terrorism,9 and the
following month, the Obama Administration announced
it was working on a deal with Cuba by years end to
permit travelers to fly on scheduled commercial flights
between the United States and Cuba, which was
confirmed in principle on December 16, 2015.10
On September 21, 2015, both OFAC and BIS released
additional rules and guidance loosening trade restrictions with Cuba and opening opportunities for
maritime trade.11 Previously, the use of a vessel in
trade with Cuba was deemed an export of that vessel
requiring a specific license. The new rules provide a
general license for vessel operators to provide carriage
between the United States and Cuba and authorize the
export and re-export of equipment and spare parts for
use on vessels. 12 Moreover, under the September
changes, providers of carrier or travel services, exporters
of authorized goods, and other specified categories are
9
Cuba: Implementing Rescission of State Sponsor of
Terrorism Designation, 80 Fed. Reg. 44,314 (BIS July 22,
2015).
10
Felicia Schwartz et al., Obama Administration Pushes for

Deal to Start Flights to Cuba by Years End, WALL ST. J., Aug.
17, 2015, http://www.wsj.com/articles/obama-administrationpushes-for-deal-to-start-flights-to-cuba-by-years-end-14398
60422 (last visited January 25, 2016).
On December 16, 2015, the State Department announced
that the United States and Cuba reached a bilateral civil aviation agreement to establish scheduled air services between the
countries. U.S.-Cuba Technical Talks Yield Civil Aviation
Arrangement, Dec. 17, 2015, http://www.state.gov/r/pa/prs/
ps/2015/12/250733.htm1439860422 (last visited January 25,
2016). The countries, however, have not yet formalized the
agreement in writing.
11
Cuban Assets Control Regulations, 80 Fed. Reg., 56,915

(OFAC Sept. 21, 2015); Enhancing Support for the Cuban
People, 80 Fed. Reg. 56,898 (BIS Sept. 21, 2015); U.S.
Department of Treasury, Treasury and Commerce Announce
Further Amendments to the Cuba Sanctions Regulations, Sept.
18, 2015, https://www.treasury.gov/press-center/pressreleases/Pages/jl0169.aspx htm1439860422 (last visited
January 25, 2016); Department of Commerce, Bureau of
Industry and Security, Cuba Frequently Asked Questions,
Sept. 21, 2015, https://www.bis.doc.gov/index.php/policyguidance/country-guidance/sanctioned-destinations/cuba
htm1439860422 (last visited January 25, 2016); Department of
the Treasury, Office of Foreign Assets Control, Guidance
Regarding Travel Between the United States and Cuba, Sept.
21, 2015, https://www.treasury.gov/resource-center/sanctions/
Programs/Documents/guidance_cuba_travel.pdf (last visited
January 25, 2016).
12
Treasury and Commerce Announce Further Amendments

to the Cuba Sanctions Regulations, Sept. 18, 2015, https://
www.treasury.gov/press-center/press-releases/Pages/jl0169.
aspx (last visited January 25, 2016); Enhancing Support for the
Cuban People, 80 Fed. Reg. 56,898 (Sept. 21, 2015).

now permitted to maintain a physical presence and
operations in Cuba, including the employment of U.S.
and Cuban persons in Cuba and the maintenance of
Cuban bank accounts.13 The changes further permit
close relatives to accompany authorized travelers,
certain exports for authorized end-uses in support of
the Cuban people, banking services for authorized travelers, and parcel service within Cuba by U.S. entities.14
Lastly, of sure importance to our readership, the prior
authorization permitting the provision of certain legal
services to Cuban nationals has been expanded to
allow the receipt of payment for such services.15
Despite the gradual opening, which will likely continue
through the Obama Administrations final days, operators should bear in mind that the trade embargo with
Cuba remains in place, and either general or specific
licenses are still required by the U.S. Government for
transactions involving Cuba or Cuban nationals. Persons
may travel to Cuba if they fit within one of the 12
general license categories, including: family visits, official business of the U.S. Government, journalistic
activity, educational activities, religious activity,
public performances and exhibitions, support for the
Cuban people, humanitarian projects, activities of
private foundations or research or educational institutes,
transmission of information or informational materials, and certain export transactions.16 Tourism is
not one of the general licenses available, and the provision of carrier services to tourists or others lacking a
license is not authorized.
Other restrictions are still in place with respect to sailings
between the United States and Cuba. The transportation
of authorized persons can only be conducted between
the United States and Cuba,17 without stops in third countries. Although vessels now enjoy a general license
permitting their use in connection with authorized
13
Treasury and Commerce Announce Further Amendments

to the Cuba Sanctions Regulations, Sept. 18, 2015, https://
www.treasury.gov/press-center/press-releases/Pages/jl0169.
aspx (last visited January 25, 2016).
36
First Quarter 2016

passenger or cargo transportation, such vessels are only
permitted a temporary sojourn to Cuba of up to 14
days.18 In view of the current infrastructure in Cuba,
the U.S. regulations do permit the provision of vessel
accommodation service to passengers while in Cuba.19
However, carriers subject to U.S. jurisdiction providing
authorized services must obtain a certification from each
customer indicating the section of the regulations
pursuant to which the customer has a general license,
and retain that certification for at least five years.20
OFAC officials have advised that carriers are not required
to investigate or otherwise verify the accuracy of the
certification.
Although the Obama Administration is moving quickly
to cement the policy change in its waning days, the
Cuban Government is not breathlessly jumping into
the relationship. Those interested in providing service
to Cuba should keep in mind that Cuba remains
committed to the socialist model, and a wide variety
of activities require government involvement and
approval. Ambassador Jose Cabanas, former chief of
Cubas de facto embassy in the United States (called
the Cuban Interest Section in Washington, D.C.) and
current Cuban Ambassador to the United States, stated
in August that it will take time to review each
proposal for service.21 Speaking before a Florida conference in May 2015, Mr. Cabanas indicated: These
companies have to go to our authorities, they have to
introduce their ideas, and [s]ome of them we already
know, but they are not all equal. Some of them have just
a license, not the capital, not the ships.22 To establish
operations in Cuba, American businesses should be
prepared to demonstrate how their proposal benefits
the Cuban people, environment, and economy, as
defined by the Cuban state, not the consumer or
private enterprise. Furthermore, smaller projects of
less than several million dollars have generally not
received priority status for review by Cuban authorities.
During an October 2015 interview, Mr. Oscar Ruana
Baqueiro, Director General of Baja Ferries, which has
14
Id.
18
15
Id.
15 C.F.R. 740.15 (2015).
19
31 C.F.R. 515.572(a)(4) (2015).
20
31 C.F.R. 515.572(b) (2015).
16
31 C.F.R. 515.60 (2015); Department of the Treasury,

Office of Foreign Assets Control, Guidance Regarding
Travel Between the United States and Cuba, Sept. 21, 2015,
https://www.treasury.gov/resource-center/sanctions/Progr
ams/Documents/guidance_cuba_travel.pdf (last visited
January 25, 2016).
17
31 C.F.R. 515.572(a) (2015).
21
Nick Gass, Ferry service to Havana could take time, Cuban

official cautions, POLITICO, May 12, 2015, http://www.politico.
com/story/2015/05/cuba-ferry-service-official-response-11
22
Id.

obtained a U.S. license to operate between the United
States and Cuba, reported: Although we hoped to
receive approval from the Cuban Government immediately, the reality is different. As the re-opening of the
embassies is a quite recent milestone, there are a lot of
topics in the Cuban Governments agenda before the
ferry, we understand it and will be patient until all
parties are ready and feel comfortable with the proposed
operation of the service.23 Speaking in New York later
that month, Mr. Alex Lee, the U.S. State Departments
Deputy Assistant Secretary for South America and
Cuba, indicated that the Cuban Government still
clearly prefers to channel all business opportunities
to state-run enterprises and indicated that American
businesses will face challenges operating in Cuba.24
Lastly, American companies interested in serving
Cuba should keep in mind it is not virgin territory
European, Chinese, Canadian, and other competitors
have long served the market, and have developed
trusted relationships with Cuban authorities deeply
involved in almost every major transaction.
Nor is congressional sentiment universally aligned with
President Obamas initiative. Powerful legislators
rooted among the Cuban exile community, such as
Rep. Illeana Ros-Lehtien (R-FL) and Sen. Marco
Rubio (R-FL), are vehemently opposed to President
Obamas unilateral detente with Cuba despite existing
statutory prohibitions. 25 And Sen. Bob Menendez
(D-NJ) accused President Obama of trying to burnish
his foreign policy legacy at the expense of the Cuban
people: Our demands for freedoms and liberty on
the island will continue to be ignored and we are
incentivizing a police state to uphold a policy of
brutality. He continued, The message is democracy
37
First Quarter 2016

and human rights take a back seat to legacy initiative.26
Moreover, even without targeted congressional resistance, repealing the embargo in the near term will be a
real challenge, given the deep partisan divisions which
have hobbled regular order and introduced brinksmanship to the relatively uncontroversial task of just
keeping the Federal Government open. Additionally,
billions of dollars in civil judgments levied against
Cuba in connection with the nationalization of U.S.
assets remain outstanding and may complicate any
effort by Cuban actors, many of whom may be viewed
as arms of the Cuban state, from operating within U.S.
jurisdiction without having their assets seized to satisfy
those judgments.
The maritime sector is moving quickly to take advantage
of the new market and the liberalization has the support
of the powerful U.S. Chamber of Commerce. Key
operators, including Carnival Cruise Lines, have
announced plans for regular service to Cuba from the
United States. Under its Fathom brand, Carnival will
provide trips which it claims will focus on supporting
cultural exchange and economic development for the
Cuban people and include a variety of artistic, educational, and humanitarian activities.27 The cruises will
call at Havana, Cienfuegos, and Santiago de Cuba,
and preliminary itineraries include meetings with entrepreneurs, artists, school children, and others in
settings ranging from colonial heritage sites to Cubas
Afro-Cuban community in Havanas Muraleando
neighborhood.28 These itineraries are required by the
people-to-people general license authorization upon
which Fathom relies for its U.S. authorization, which
lies at the heart of the initiative as described by President
26
23
Rebecca Gibson, Planning new passenger ferry services to

Cuba, CRUISE & FERRY, Oct. 21, 2015, http://www.cruiseand
ferry.net/articles/planning-new-passenger-ferry-services-tocuba#.Vo060q-FOpo (last visited January 25, 2016).
24
Elizabeth Llorenta, Cubas desire to open its economy is

stymied by refusal to cede control, U.S. officials say, FOX
NEWS LATINO, Nov. 2, 2015, http://latino.foxnews.com/latino/
politics/2015/11/02/cuba-desire-to-open-its-economy-is-sty
mied-by-refusal-to-cede-control-us/ (last visited January 25,
2016).
25
Marco Rubio, Obamas Faustian Bargain with Cuba, N.Y.

TIMES, July 8, 2015, http://www.nytimes.com/2015/07/08/
opinion/marco-rubio-obamas-faustian-bargain-with-cuba.
html?_r=0 (last visited January 25, 2016).
Magaret Talev & Indira Lakshmanan, Obama Urges

Congress to Take Next Step, Lift Cuba Embargo, BLOOMBERG,
July 1, 2015, http://www.bloomberg.com/politics/articles/
2015-07-01/obama-urges-congress-to-lift-cuba-embargoafter-embassy-opened.
27
Associated Press, Carnival announces ports of call for

planned Cuba cruises, FOX NEWS, Sept. 30, 2015, http://
www.foxnews.com/travel/2015/09/30/carnival-announcesports-call-for-planned-cuba-cruises/ (last visited January 25,
2016). See also Fathom Cuba Page, https://www.fathom.org/
cuba-expand-your-horizons (last visited January 25, 2016)
(offering trips for mindful travelers starting at $1,800).
28

2016).
38
First Quarter 2016
Obama.29 The general license requires travel under the

auspices of an organization that is a person subject to
U.S. jurisdiction and sponsors such exchanges. 30
Furthermore, the sponsor must ensure the full-time schedule for educational exchange activities and that the
predominant portion of the activities not be with individuals acting for the Government of Cuba.31 Last fall,
Carnival indicated these educational people-to-people
exchanges cruises would begin as soon as May 2016.32
Additionally, President Obama is betting that as more

and more people travel to Cuba, meet its people, and
enjoy its culture, they will see that there is a lot to be
gained from cultural, educational, and commercial
openness and exchange. And once that happens, even
a future President Marco Rubio would have real difficulty battling an increasingly well-funded and organized
lobby in favor of keeping open the Cuba-U.S. trade.
The idea, according to Administration officials, is that

like the Iran and the health care law initiatives, the
Cuba opening will become so embedded in American
policy over President Obamas final eighteen months
that they will become politically difficult to reverse.33
If Carnival and other operators invest in the trade, and
` Ente,
begin to accumulate a real economic stake in dO
they will not easily give it up and will push for more.
Bryant E. Gardner is a Partner at Winston & Strawn,

LLP, Washington, D.C. B.A., summa cum laude 1996,
Tulane University of Louisiana; J.D. cum laude 2000,
Tulane Law School.
29
Fathom Cuba Page, https://www.fathom.org/cuba-expandyour-horizons (last visited January 25, 2016).
30
Department of the Treasury, Frequently Asked Questions

Related to Cuba, Nov. 25, 2015, https://www.treasury.gov/
resource-center/sanctions/Programs/Documents/cuba_faqs_
new.pdf (last visited January 25, 2016); 31 C.F.R. 515.565
(2015).
31
Id.
32

2016).
33
Felicia Schwartz et al., Obama Administration Pushes for

Deal to Start Flights to Cuba by Years End, WALL ST. J., Aug.
17, 2015, http://www.wsj.com/articles/obama-administrationpushes-for-deal-to-start-flights-to-cuba-by-years-end-1439
*****
39
First Quarter 2016
RECENT DEVELOPMENTS
Appurtenances
Clay v. Ensco Offshore Co., 2015 U.S. Dist. LEXIS

156568 (E.D. La. Nov. 19, 2015)
Plaintiff was working as a seaman aboard the defendants drilling rig. He alleged he was injured while
engaged in plugging and abandoning work when a
shortcut spear, used to remove casing, became
stuck. While attempting to remove it, parts of the tool
were ejected and struck the plaintiff causing him serious
injuries.
Plaintiff filed a motion for partial summary judgment as
to liability, and defendant moved for summary judgment
on the issue of liability. The first issue was whether the
shortcut spear was an appurtenance of the vessel such
that it could render the vessel unseaworthy. The court
concluded that equipment brought aboard a vessel used
to perpetuate the mission and purpose of the vessel was
an appurtenance. Even though the shortcut spear was
provided by a third party, it was part of a larger assembly
to be used to remove the casing. Therefore, it was used
in the mission of the vessel. As the spear was being used
by defendant in its capacity as vessel owner and was
being used by the crew of the vessel, it was an appurtenance. The court found that the spear played a
substantial part in bringing about the injury and agreed
that the vessel was unseaworthy.
The court found issues of fact as to whether the defendant or a third party was negligent in causing the injury
because there was a dispute as to whether the defendants methods were in accordance with the crews
training.
regarding the ownership of two mobile cranes located

on a semi-submersible drilling vessel named the
PROSPECTOR. These cranes were originally owned
by Maxim, who rented them to PRC under the condition that the cranes remain at a certain location. PRC
moved the cranes aboard the PROSPECTOR and later
moved that vessel to Malins property for repairs. After PRC failed to pay Malins repair invoices, the
PROSPECTOR (with the cranes) was arrested and
purchased by Malin at a judicial sale.
The court denied both parties motions for summary
judgment. While the parties agreed that ownership of
the cranes turned on whether the cranes were appurtenances to the vessel, the parties presented competing
tests for the court to use in determining whether the
cranes were appurtenances. Instead of selecting a particular test, the court applied the facts to each partys
proposed test in denying the summary judgment
motions.
Malin argued that an object is an appurtenance when
it is necessary and beneficial to the mission and operation of the vessel. While Malin presented evidence that
the cranes were beneficial to the mission of the
PROSPECTOR, the court determined a genuine issue
of material fact existed as to the vessels mission based
on evidence that the vessel may be inoperable. Maxim
argued that whether an object is an appurtenance
depends on the intent of the party that leased the
object. While Maxim presented evidence that it did
not intend the cranes to be used on the vessel, the
court found that a genuine issue of material fact
existed as to Maxims intent because Maxim knew
that its cranes were onboard a vessel and that Maxim
knew about the arrest of the PROSPECTOR before the
judicial sale, but took no action.
Submitted by KMM
Submitted by PML
Malin International Ship Repair & Drydock, Inc. v.
MODU PROSPECTOR, 2015 U.S. Dist. LEXIS
143220 (S.D. Tx. 2015)
Plaintiff, Malin International Ship Repair & Drydock
and Defendant, Maxim Crane Works LP filed competing summary judgment motions in the United
States District court for the Southern District of Texas
Constitutional Issues
Maher Terminals, LLC v. Port Auth. of N.Y. & N.J., 805

F.3d 98 (3d. Cir. 2015)

A marine terminal operator at the Port Authority of New
York and New Jersey attempted to challenge its lease
terms by arguing that certain contract provisions
violated the Tonnage Clause of the United States
Constitution.1
Affirming the district courts decision to dismiss the
claims of the terminal operator, the appellate court
held: (1) that in order to come within the zone of interests of the Tonnage Clause, a party must allege an injury
to a vessel as a vehicle of commerce; (2) that a landside
marine terminal operator challenging the rent under a
lease with the Port Authority could not state a claim
under the Tonnage Clause where its injury was not an
injury to a vessel or its representative; (3) that a landside
marine terminal operator could not state a claim under
the Rivers and Harbors Appropriation Act because it
only applied to taxes and fees imposed on or collected
from vessels, their passengers, or their crews; (4) that a
landside marine terminal operator failed to state a claim
under the Water Resources Development Act because
that Act only applies to fees on vessels and cargo, and
the Port Authority never indicated that it charged rent
pursuant to the Act; and (5) that the district court lacked
federal admiralty jurisdiction because the landside
marine terminal could not satisfy the location test as
any negligence occurred on land, the lease was negotiated on land, and the lease payments were made
on land.
40
First Quarter 2016

known as Sharp Station. The Port of Baton Rouge was
an undisputed maritime situs under the Longshore and
Harbor Workers Compensation Act, whereas Sharp
Station was not such a situs. Fabre was diagnosed
with asbestosis in 2011 and alleged that his exposure
occurred at Sharp Station and the Port of Baton Rouge.
He sought benefits under the LHWCA and received an
order requiring Ramsay Scarlett to pay his medical
expenses. The Benefits Review Board affirmed the
award, and Scarlett appealed to the Fifth Circuit.
Ramsay Scarlett argued that there was no evidence
Fabre was exposed at the Port of Baton Rouge. The
ALJ hearing the case credited Fabres testimony that
he was exposed to asbestos at the Port even though
the exposure was less than at Sharp Station. The Fifth
Circuit found that any exposure is sufficient to trigger
coverage under the LHWCA if it has the potential to
cause disease.
Ramsay Scarlett also argued that Fabres subsequent
employment exposed him to asbestos, thus meaning it
could not be the last covered employee. The Fifth
Circuit found no error in the ALJs conclusion that
Fabre was not exposed to asbestos during his subsequent
employment. Thus, Ramsay Scott failed to rebut the
determination that it was the last maritime employee
liable under the LHWCA. Thus, the BRBs affirmance
of the ALJs award was affirmed.
Submitted by KMM
Submitted by SPB
Limitation of Liability
LHWCA
Ramsay Scarlett & Co. v. Director, Office of Workers

Compensation Programs, 806 F.3d 327 (5th Cir. 2015)
Fedinand Fabre was employed by Ramsay Scott from
1969 to 1991. He worked primarily at the Port of Baton
Rouge, although he spent some time at a storage facility
Editors Note: In 40 years of practice, having never come

across the Tonnage Clause, your unenlightened editor had to
look it up. For the benefit of those equally unenlightened souls,
the Tonnage Clause is found at Art. I, 10, cl. 3 and reads:
No State shall, without the Consent of Congress, lay any
Duty of Tonnage, keep Troops, or Ships of War in time of
Peace, enter into any Agreement or Compact with another
State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit
Delay.
In re American River Trans. Co., 800 F.3d 428 (8th Cir.

2015)
The dispute arose from damage to a lock and dam after
it was struck by the M/V JULIE WHITE, a towboat
owned by the American River Transportation Company (Artco). Artco sought to limit its liability or
exoneration for the governments damages. The government, however, never filed a timely claim in the
limitation proceeding. Thus, the district court granted
Artcos motion to dismiss. The Eighth Circuit reversed.
On remand, the Artco filed a motion for a final decree of
exoneration based on the governments failure to file a
claim and the lack of any other claims in the limitation
act. The government moved for permission to file a late
claim in the limitation proceeding and initiated a new

and separate proceeding based on the same incident
under the Rivers and Harbors Act (RHA), 33
U.S.C. 408. In the limitation proceeding, Artco then
filed a motion to impose sanctions and to hold the
government in contempt for violating the district
courts injunction against the prosecution of separate
suits. The government filed a motion to consolidate
the actions.
The district court disposed of all motions in a single
order. First, it denied Artcos motion for a decree of
exoneration, stating that the government could pursue
an in personam remedy for its 33 U.S.C. 408 claim.
Second, it denied Artcos motion for sanctions. Third, it
denied the governments motion for leave to file a late
claim. Finally, it denied the Governments motion to
consolidate the actions. Artco appealed, arguing that
the RHA action was subject to the limitation action,
and that the district court erred in not holding the
government to its prior injunction.
In its decision, the Eighth Circuit noted, inter alia, that
the purpose of the Limitation Act is to provide
concursus to consolidate all disputes into one action
and that the purpose of the RHA is to impose strict
liability on vessel owners whose vessels impair or
injure public works on navigable waters. The government argued that the two acts are in irreconcilable
conflict, and therefore the RHA implicitly repealed the
Limitation Act.
Citing Blanchette v. Conn. Gen. Ins. Corps., 419 U.S.
102, 134 (1974), the court stated that a new statute will
not be read as wholly or even partially amending a prior
one unless there exists a positive repugnancy between
the provisions of the new and those of the old that
cannot be reconciled. The government argued that
the RHA provides an in personam remedy whereas
the Limitation Act strictly limits damages to the vessel
and freight. Moreover, the government argued that,
while the Limitation Act provides six months to initiate
an action, the RFHA provides for three years to initiate
an action.
The court noted that the RHA does not explicitly provide
for an in personam cause of action. Moreover, after
reviewing relevant cases from the Supreme Court, the
court noted that they should not imply remedies that
were not expressly created. The court also noted that
there was a split in the decisions of the circuits on the
issue. Whereas the Sixth Circuit has found an in personam
remedy, the Fifth Circuit and Tenth Circuit have not.
41
First Quarter 2016

The court ultimately agreed with the Fifth and Tenth
Circuits and held that in rem remedies are available
for violations of the RHA, as the text does not include
the necessary duty-creating language to infer the existence of an in personam remedy. In turn, because the
court found that an in rem remedy does not conflict with
the Limitation Act, the court declined to read the RHA
as repealing the Limitation Act in terms of limitation of
liability.
The court next turned to whether the privity or knowledge requirement of the Limitation Act is an
irreconcilable conflict with the strict liability standard
imposed by the RHA. In sum, because the Court
found no requirement that the culpability standard in
the privity-or-knowledge element be congruent with
the culpability standard for liability, the court found
no irreconcilable conflict between the Limitation Act
and the RHAs strict liability standard.
The court was also not persuaded there was any irreconcilable different in the period for commencing actions
under the two statutes.
The court also decided that the district court had not
abused its discretion in denying the motion for sanctions
for violation of its Limitation Act injunction. The court
held Although the governments filing of a separate
suit violated the plain terms of the district courts injunction, our opinion and the district courts prior holding
suggested that the injunction may have been overbroad
to the extent it enjoined separate proceedings for claims
not subject to the Limitation Act.
Finally, Artco argued that the district court erred in
denying Artcos motion to hold the government in
contempt for noncompliance with the district courts
concursus injunction. Although the governments
filing of a separate suit violated the injunction, the
court found that the motion was properly denied
because the injunction was overbroad to the extent
that it enjoined separate proceedings for claims not
subject to the Limitation Act.
Submitted by DJC
In Re: CDM Resource Management LLC, 2015 U.S.

Dist. LEXIS 145465 (E.D. La. 2015)
This case examines when a communication to a vessel
owner is sufficient notice of a claim for purposes
of the Limitation of Liability Act, 46 USC 3050,

et seq. Claimant Hyatt alleged he was injured on the
vessel owned by Petitioner CDMs vessel on December
6, 2013. Beginning in January 2014 an email exchange
began between Hyatts attorney and CDM, addressing
the alleged injury. On July 8, 2014, Hyatts attorney sent
a letter to CDM advising of his representation of Hyatt
and requesting information. On December 1, 2014,
Hyatt filed suit in state court, and on January 16,
2015, CDM filed a Limitation Petition.
CDM filed a motion for partial summary judgment in
the Limitation action, and Hyatt responded that the
Limitation Petition, filed more than six months after
the July 8, 2014 letter from Hyatts attorney to CDM,
was untimely, and therefore time barred. The Court
agreed with Hyatt and dismissed the Limitation action
for lack of subject matter jurisdiction. In reaching its
ruling the Court emphasized Fifth Circuit case law indicating the notice requirement to begin the six month
tolling period to file the limitation petition requires
only that the claimant raise a reasonable possibility
a claim may be filed, not a reasonable probability.
Therefore, said the Court, the July 8, 2014 letter from
Hyatts attorney requesting accident and other information, though it only explicitly threatened a workers
compensation claim, was sufficient to put the vessel
owner on notice and begin the six month tolling
period for filing the limitation petition.
Submitted by PML
In re Henry Marine Serv., 2015 U.S. Dist. LEXIS

131477 (E.D.N.Y., Sept. 29, 2015)
A 260-foot barge under tow collided with and damaged
the northwest fender system of the Atlantic Beach
Bridge in Nassau County.
On August 6, 2014, Nassau County Bridge Authority
(NCBA) sued the tug captain, the tug owner, and the
owner pro hac vice of the barge. NCBA asserted
damages in the amount of $850,000.00 arising from
the tug owners negligence. On November 20, 2014,
the tug owner filed a limitation of liability action to
limit its liability for claims arising out of the allision
to $530,000, the value of its interest in the tug.
NCBA moved to dismiss the limitation action pursuant
to Fed. R. Civ. P. 12(b)(6) asserting that the tug owners
limitation action was time barred because it was filed
more than six months after the tug owner received
written notice of the claim. As NCBA included materials
42
First Quarter 2016

outside of the complaint, the Court construed the motion
under Fed. R. Civ. P. 12(b)(1).
In defense, the tug owner argued that, while it did
receive written communication of the claim prior to
August 6, 2014, it did not become aware that NCBAs
damage claims exceeded the value of the tug until after it
was served with the Complaint.
The court noted that the email and letter sent by NCBA
to the tug owner prior to August 6, 2014 did not indicate
the extent of the damages suffered during the incident.
Without more, the Court held that it would be unreasonable to place the burden on the tug owner to infer that
NCBA might bring a damages claim that exceeded the
value of the tug. Because the tug owner commenced its
limitation action within six months of the service of the
Complaint, or when it had notice that the damage claims
would exceed the value of the tug, the Court held that
the limitation action was timely filed and denied
NCBAs motion to dismiss.
NCBA also made a motion to lift the stay arising from
the limitation action.
The Court described the tension of the apparently exclusive jurisdiction vested in admiralty courts by the
Limitation of Liability Act and the preservation of
common law remedies like the right to a jury trial in
the saving to suitors clause of 28 U.S.C. 1333.
The Court noted that district courts have discretion to
stay or dismiss Limitation Act proceedings to allow a
party to pursue claims in state court where the vessel
owners right to seek limitation will be protected, and
that this right to seek limitation will be protected: (1) if a
single claimant brings an action in excess of the limitation fund and enters into certain protective stipulations;
and (2) if the limitation fund exceeds the aggregate of
the claims made against it.
In its reply, NCBA represented that it would discontinue
its claim against the owner pro hac vice of the barge, so
that this matter would qualify for the single claimant
exception. The Court, however, disagreed because two
claimants would remain, including: (1) NCBA, which
had claimed against the tug owner for negligence; and
(2) the owner pro hac vice of the barge, which had
asserted claims against the tug owner for indemnity
and breach of the warranty of workmanlike performance. The Court also noted that NCBA had failed to
submit the required stipulation.
43
First Quarter 2016
As a result, the Court denied NCBAs motion to dismiss

the limitation action without prejudice and with leave to
renew it as a motion to stay the limitation action, as long
as the claimants agreed to a stipulation which protects
the tug owners right to seek limitation of liability.
The following month, Foundation Theatre contacted

Kindra and Black Diamond to request assistance in
moving the barge to a safer mooring because of an
upcoming storm, but no assistance was provided. That
evening the barge sank.
Submitted by SPB
The issue before the court was whether Foundation

Theatre waived its claim for negligence, to the extent
it is based on unseaworthiness, in the charter agreement.
Matter of Complaint of Kindra Lake Towing, L.P., 2015

U.S. Dist. LEXIS 156881 (N.D. IL November, 2015)
Kindra Lake Towing, L.P. (Kindra) demise chartered
a barge to Black Diamond Marine Equipment, Inc.
(Black Diamond), which then demised chartered
that same barge to Foundation Theatre Group, Inc.
(Foundation Theatre). The barge sank while docked
at a Navy Pier. Kindra and Black Diamond both sought
a declaration that they were not liable for the barge
accident.
Foundation Theatre asserted claims for violation of the
implied warranty of seaworthiness and negligence with
respect to the barges seaworthiness and docking of the
barge. Kindra and Black Diamond moved to dismiss
Foundation Theatres implied warranty and misrepresentation claims, and the negligence claims to the
extent that they concerned seaworthiness.
In the charter agreement between Black Diamond and
Foundation theatre, Black Diamond made no warranty
or representation, either express or implied, regarding
the condition, seaworthiness, or fitness of the barge
for any particular purpose.
The court then noted that, prior to signing the charter
agreement, Foundation Theatre questioned Kindra and
Black Diamond about the condition of the barge, and
both Kindra and Black Diamond assured Foundation
Theatre that there were no problems with the barge.
The court also noted that Foundation Theatre entered
into a separate contract with Black Diamond and
Kindra to move the barge, and to provide all necessary
moorings of the barge. Upon arrival, however, the court
noted that Kindra and Black Diamond failed to ensure
that it had a proper fender to protect the pier wall, and
failed to ensure that the barge was properly secured to
the pier. This led to the barge repeatedly slamming into
the pier wall causing damage to the barge and the pier.
Kindra then oversaw installation of a new fender and resecuring of the barge to the dock, but did not inspect the
barge for damage.
In its analysis, the court again looked at the specific

language in the charter agreement. It noted that, in addition to any general waiver, Foundation Theatre
specifically waived claims related to unseaworthiness
and breach of warranty. Thus, Foundation Theatres
claims related to those issues were dismissed.
The court then turned its attention to Kindra. At the
outset, it noted that Kindra was not a party to Foundation
Theatres charter agreement with Black Diamond, thus
the claims were not barred by the charter agreements
waiver clause. Kindra argued, however, that its lack of
privity also meant that Foundation Theatres claims with
respect to seaworthiness should be dismissed.
In its analysis, the court first noted that Illinois law
requires that privity of contract exist to recover
damages for a breach an implied warranty. But Foundation Theatre did not allege that it was in privity of
contact with Kindra. Thus, Foundation Theatres
claims for a breach of implied warranty should be
dismissed.
The court then addressed Foundation Theatres claims
related to fraudulent and negligent misrepresentation.
The court reasoned that these are tort actions, which
are measured by the scope of the duty owed rather
than concepts of privity, but Kinda had not addressed
anything other than a lack of privity. Thus, Kindras
motion to dismiss these claims were denied.
Submitted by DJC
In re L&G Fisheries LLC, 2015 U.S. Dist. LEXIS

158876 (E.D.N.Y. Aug. 10, 2015)2
Petitioner, the owner of a commercial fishing vessel on
which a seaman was killed, filed a complaint for exoneration from, or limitation of, liability pursuant to the
2
Editors Note: SPB reports that he and Brad Gandrup, Jr. of
Pierce Atwood, LLP are counsel for the Petitioner, L&G Fisheries, LLC in this matter.

Limitation of Liability Act, 46 U.S.C. 30501 et seq.
(the Limitation Act) seeking to limit the owners
liability for the seamans death to the value of the
vessel. The decedents personal representative (Claimant) filed claims in the limitation action and
demanded jury trial under the Jones Act.
Petitioner moved to bifurcate the case, or in the alternative to strike the demand for a jury trial, arguing that
the Limitation Act provides that until the federal court,
sitting in admiralty and without a jury, decides whether
the vessel owner is entitled to limit its liability, prosecution of the seamans claims must cease, and that, in order
to determine whether the owner was entitled to limitation, the court, without a jury, must first determine
whether the owner was liable at all.
The Court noted that two exceptions exist to the admiralty courts exclusive jurisdiction, and permit claimants
to proceed with their common law claims in other
forums: (1) where there is a single claimant, who stipulates that the federal court retains exclusive jurisdiction
over limitation of liability issues, that his or her claim
does not exceed the limitation fund, and that he or she
waives any defense of res judicata with respect to
limitation of liability; and (2) where the aggregate of
the claims does not exceed the value of the limitation
fund. The Court explained that in such cases the need for
the protections of the Limitation Act is unnecessary.
The Court also noted that the savings to suitors clause
preserves the right to a jury trial, and because there is no
right to a jury trial in admiralty actions, and claimants
are enjoined from proceeding in other forums once a
limitation action is commenced, there exists an inherent
tension between the federal courts exclusive jurisdiction to determine a vessel owners right to limited
liability, and a claimants right to a jury trial.
Regarding the matter at hand, the Court determined that
because neither exception to the admiralty courts exclusive jurisdiction was present, the issues of liability and
limitation must be decided by the Court without a jury.
While the Claimant conceded, that neither exception
applied, he urged the Court to empanel a jury and
hold a single trial, where the jury would first render a
decision on the claims, including the Jones Act, and then
provide an advisory opinion to the Court on the Limitation Act issues. The Court, however, disagreed with the
Claimant, and held that where as here, the limitation
court was faced with multiple claims, one of which
alleged wrongful death, the aggregate amount of
44
First Quarter 2016

which exceeded the limitation fund, and claims were
brought on behalf of more than one party, the interests
of judicial economy were best served by bifurcation, and
that the issues of liability and limitation of liability
should be tried to the court rather than a jury. Accordingly, the Magistrate Judge recommended that the Court
enter an order of bifurcation providing for a non-jury
trial of the issues of negligence and privity, and further
recommended that if limitation was denied after trial of
those issues, the Claimant be provided the opportunity
to proceed to a non-jury trial of remaining issues, or seek
to lift the stay so as to proceed to a jury trial in his
chosen forum as to remaining issues.
Submitted by SPB
In re Omega Protein, Inc., 2015 U.S. Dist. LEXIS

145561 (W.D. La. 2015)
Omega Protein Inc., owner of the F/V ISLE
DERNIERE, filed a complaint in the United States
District Court for the Western District of Louisiana for
exoneration from or limitation of liability arising out of a
collision3 between its vessel and the M/V LADY
LAUREN owned by Louisiana Marine Towing. Three
Omega Protein employees (Anthony Scott, Charles
Brumfield, and Robert Lancelin) aboard the ISLE
DERNIERE claimed that they were injured in the accident. Prior to a trial on these claims, the court granted
summary judgment on Louisiana Marine Towings
exoneration claim finding that the LADY LAUREN
had no liability in the accident. In addition, Anthony
Scott settled his damages claim against Omega Protein
before trial.
At trial, the court determined that the negligence of
the ISLE DERNIEREs pilot was the sole cause of the
accident. The evidence established that the river was
wide enough for the ISLE DERNIERE to pass the
LADY LAUREN safely, yet the ISLE DERNIEREs
pilot negligently operated his vessel in attempting the
pass. There was no evidence that the pilot had prior
incidents or that Omega Protein knew or should have
known that the pilot would act negligently. Therefore,
Editors Note: While the decision references the casualty

involved as an allision, the facts recited in it establish that
the incident involved a collision between two moving
vessels, not an allision, i.e., a moving vessel coming into
contact with a stationary vessel or object. Glossary of Maritime Terms, by William Tetley, QC.
45
First Quarter 2016
the court held that Omega Protein was entitled to a

limitation of liability.
second is where there is only one claim which exceeds

the value of the fund.
Citing the Limitations Act as to how a vessels value

may be determined, the court rejected Omega Proteins
valuation of the vessel and accepted the Claimants
expert appraisers valuation. Charles Brumfield proved
his injuries were caused by the accident and the court
awarded him damages. Robert Lancelin failed to prove
that certain injuries were caused by the accident and the
court only awarded him partial damages for injuries
proven to have been caused in the collision. In addition,
the court did not award Mr. Lancelin past and future
wage loss due to the fact that his age was greater than
the statistical average work expectancy age.
The court found that Brown met the second exception

because there were no concerns regarding multiple
claims for the same fund. Thus, the issue was whether
Browns stipulations were adequate enough to lift the
stay.
Submitted by PML
In re Complaint of Osage Marine Servs., Inc., 2015

U.S. Dist. LEXIS 118117 (E.D. Mo. Sept. 4, 2015)
On December 1, 2014, claimant Brian Brown
(Brown) sustained injuries to his left knee, back,
and neck when he slipped on the deck of the M/V
FRANCIS while carrying a water cooler. The petitioner,
Osage Marine Services, Inc. (Osage), owned the M/V
FRANCIS, which was docked at Osages facility
located at Mile 175, Upper Mississippi River. Brown
filed suit in St. Louis City Circuit Court, asserting
claims under the Jones Act, 46 U.S.C. 30104, and
for unseaworthiness and maintenance and cure under
the General Maritime Law.
Osage denied any liability, and brought an action for
exoneration from or limitation of liability pursuant to
the Limitation of Vessel Liability Act, 46 U.S.C.
30501-12. Osage filed an Ad Interim stipulation for
value as a security in which it agreed to pay the court the
value of Osages interest in the vessel ($900,000) within
10 days. In turn, Brown filed stipulations with the court
concerning the courts exclusive jurisdiction over
matters regarding the litigation of the limitation fund
and waiver of claims of res judicata. Osage contended
that Browns stipulations were too ambiguous to protect
its interests.
The Eighth Circuit has recognized two types of
limitation cases in which claimants may pursue their
remedies in a forum of their own choosing, rather than
in the admiralty court. The first is one in which the
limitation fund exceeds the total of all claims; the
Osage argued that Browns stipulations were inadequate

because he failed to concede the value of the limitation
fun is the value of the vessel. The court found Osages
arguments unpersuasive, however, because the only
stipulation necessary pertains to the exclusive jurisdiction of the court, not the value of the fund. Thus, the
court found Browns stipulation was sufficient.
Osage also argued that aspects of Browns stipulations
were inadequate because they were too ambiguous,
particularly as it relates to res judicata. The court again
disagreed, however, noting that the language used was
similar to that used in prior cases; and moreover, that the
language used sufficiently protected Osages rights on
issues related to res judicata.
Finally, the court dismissed Osages argument that
Browns last stipulation left open the possibility of
enforcing a judgment in excess of the limitation fund.
Instead, the court found it adequately protected Osages
interest by limiting Osage to the court-determined value
of the limitation fund.
Because the court found the stipulations adequate, the
court ordered the lower court to dissolve the restraining
order, and stay all proceedings pending the resolution of
the state court actions.
Submitted by DJC
In re Mains, 2015 U.S. Dist. LEXIS 142370 (E.D. La.

2015)
This case arose from the collision of two wave runners,
which were owned by the plaintiff-in-limitation, Ronald
Mains. Jason Guhman had two minor passengers riding
with him on a wave runner; one, the daughter of Fred
Deitz, was injured during the collision. Mains filed a
complaint seeking exoneration from or limitation of
liability regarding any injury or damage caused by the
collision of the two wave runners under 46 U.S.C.
30501. The Court stayed any and all actions arising
from the collision and ordered that any claimant seeking
recovery for any loss caused by the collision file the

claim with the court by April 10, 2015 or be defaulted.
The Court also ordered the limitation action to be publicized and direct notification to known or anticipated
claimants. Fred Dietz, individually and on behalf of
his minor child, filed a claim with the Court on May
27, 2015, one month after the Courts deadline. Ronald
Mains moved to dismiss the untimely filed claim.
The Court in its opinion discussed that relief from a late
claim is within the courts discretion. The Fifth Circuit
has established three factors to consider when determining whether to allow a late-filed claim: (1) whether
the proceeding is pending and undetermined, (2)
whether allowing the claim will adversely affect the
rights of the parties, and (3) the claimants reasons for
filing late.
The Court denied Ronal Mains Motion to Dismiss the
untimely filed claim given that any potential prejudice to
Mains was insignificant, the claim was only a month late
and Mains failed to assert any reason why the short
delay adversely affected his rights.
Submitted by PML
Marine Insurance
Collins v. A.B.C. Marine Towing, LLC, 2015 U.S. Dist.

Lexis 134776 (E.D. La. 2015)
This matter arose out of fatal allision between a crane
barge and a bridge; while being towed by a vessel, the
mast of a crane barge allided with a bridge causing the
crane boom to fall onto the vessels pilot house, killing
the operator and injuring several crew members. At the
time of the incident, the vessel and barge were owned by
separate entities, but the vessel had a Master Services
Contract with the barge requiring the vessel to maintain
several insurance policies and to name the barge as an
additional insured; specifically that the vessel was
required to maintain Hull and Machinery Insurance
in amounts equal to the fair market value of the Vessel
and any substitute vessel (when applicable).
Following this allision, a dispute arose between the
insurance underwriter and the barge owner regarding
whether the barge was covered under the Hull and
Machinery Policy for Sue and Labor expenses associated with damage to the barge. As a result of this
dispute, the underwriter filed a motion for summary
judgment on the barges claims for Sue and Labor
46
First Quarter 2016

coverage, arguing that even if the barge was an additional insured, it was not entitled to Sue and Labor
coverage because that clause only provided cover for
expenses incurred to minimize a loss to scheduled
vessels and the barge was never listed or intended to
be listed on the policys schedule of vessels. In response,
the barge filed a cross motion for partial summary judgment alleging that the Sue and Labor clause definitively
established that if there is a claim for Total Loss (which
there was here), the policy covered Sue and Labor and
salvage expenses of vessels, such as the barge.
Since both parties agreed there are genuine issues of fact
regarding the amount of sue and labor expenses incurred
by the barge, the only issue before the Court was
whether the barge was entitled to coverage under the
Sue and Labor policy. Applying Louisiana law, the
court found that to read the policy as providing firstparty hull and machinery coverage for not just scheduled
vessels, but for any vessel or barge that may be engaged
to tow would be unreasonable and ignore the plain
reading of the policy. Therefore, the Court granted the
underwriters motion for summary judgment and denied
the barges cross-motion.
Submitted by PML
Maritime Liens
Valero Marketing and Supply Co. v. M/V ALMI SUN,

2015 U.S. Dist. LEXIS 172258 (E.D La. Dec. 28, 2015)
Plaintiff entered into a contract with O.W. Bunker USA
to provide bunker services for the defendant vessel, with
O.W. Bunker Malta acting as a middleman to pass the
order for bunkers from the vessel owner to O.W. Bunker
USA. Fuel was delivered, but Valero never received
payment. The O.W. Bunker companies collapsed and
went into bankruptcy. Valero then sought the arrest of
the vessel, with the arrest taking place. Valero and the
vessels owner agreed to the posting of a letter of undertaking as a substitute res. The vessel was released from
arrest. Valero then moved for summary judgment on the
validity of its maritime lien.
The issue was whether a maritime lien existed even
though there was no privity of contract between
Valero and the owner of the vessel. The district court
found there were not sufficient facts to demonstrate that
O.W. M. was a subcontractor of the vessel sufficient to

confer a maritime lien in favor of Valero because there
was no showing that the vessel owner selected Valero.
The court further found that the acceptance of the fuel by
the owner did not create a maritime lien in favor of
Valero. Further, nothing in the contract between
Valero and O.W. Malta created any rights to impose a
maritime lien. Thus, Valeros motion for summary judgment was denied.
Submitted by KMM
Outer Continental Shelf Lands Act

155902 (E.D. La. Nov. 18, 2015)
Clay was a floorhand employed by Ensco working
aboard a semi-submersible drilling rig off the coast of
Louisiana. Ensco was working pursuant to a contract
with Anadarko Petroleum Company. The contract
contained a standard indemnification and hold harmless
provision by which Ensco would indemnify Anadarko
for any claims by Ensco employees. Anadarko, in turn,
contracted with Schlumberger for drilling services, and
that contract also contained a provision obligating
Anadarko to indemnify Schlumberger for claims for
injury brought by Anadarkos subcontractors. Plaintiff
claims he was injured while working on the rig and filed
suit under the Jones Act and general maritime law
against Ensco. He later amended his complaint to
include a claim against Schlumberger as the provider
of the drilling tool that failed and injured him.
Schlumberger sought contractual indemnity from Ensco
pursuant to the various indemnity agreements. Both
parties filed cross motions for summary judgment on
the enforceability of the provisions. Ensco argued the
provisions are invalid under Louisiana law, whereas
Schlumberger argued they were enforceable under maritime law.
The district court agreed that the situs of the injury
required application of the Outer Continental Shelf
Lands Act because the contract called for the performance of work on a drilling rig temporarily attached
to the OCS. Thus, OCSLA applied. With the application
of OCSLA, the question was whether the contract
at issue was maritime in nature or was governed by
state law.
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First Quarter 2016

At the time of his injury, plaintiff was engaged in plugging and abandoning work related to wireline operations
offered by Schlumberger. The court found that the case
law on the issue was not clear but ultimately determined
that the contract was maritime in nature because the
crew was working aboard a vessel in navigable waters
and was more than incidentally related to the mission of
the vessel. As the contract was maritime, federal law
applied, and the indemnification provision was held
valid. Thus, the court granted summary judgment in
favor of Schlumberger and denied Enscos motion.
Submitted by KMM
Practice and Procedure
Aponte v. Caribbean Petroleum Corp., 2015 U.S. Dist.

LEXIS 149126 (D. Puerto Rico 2015)
An explosion at an oil facility owned and operated by
Caribbean Petroleum Corporation (CPC) occurred
while a vessel was discharging gasoline into storage
tanks, and one or more tanks overflowed. The gasoline
was somehow ignited causing an explosion and fire,
which created smoke and spread hazardous materials.
Numerous lawsuits were filed after the explosion. The
vessel owner, who was named as a defendant in several
of the lawsuits, filed a complaint for exoneration from,
or limitation of, liability pursuant to the Limitation of
Liability Act, 46 U.S.C. 30501 et seq. (Limitation
Action). The Court stayed all claims against the
vessel owner outside the Limitation Action. Later,
after CPC filed bankruptcy, the Court stayed all claims
against CPC.
The Court decided that an orderly and expeditious
disposition of issues surrounding the explosion would
be best achieved by first proceeding with the Limitation
Action while the cases outside the Limitation Action
remained stayed.
The vessel owner, as Petitioner, filed a third-party
complaint in the Limitation Action against seventeen
other third party defendants. The claimants in the
Limitation Action objected on the basis that the vessel
owner as Petitioner in the Limitation Action is not
expressly allowed to implead third parties under Fed.
R. Civ. P. 14(c). While the Court agreed with the claimants that Fed. R. Civ. P. 14(c)(1) does not expressly
allow Petitioner to implead third parties, it noted that

claimants failed to develop an argument or point to any
legal authority demonstrating that Fed. R. Civ. P.
14(c)(2) is unavailable in limitation proceedings. The
Court further noted that courts routinely allow limitation
petitioners to bring in additional parties that may be
liable for claims against them, and that the purposes of
Fed. R. Civ. P. 14(c)s unique liberal joinder policy
are served by allowing Fed. R. Civ. 14(c)(2) tenders in
limitation actions. Because the most efficient way to
determine which parties were liable for causing the
explosion and fire, and to avoid inconsistent findings,
is to bring all of the parties into one action, the Court
found Petitioners Fed. R. Civ. P. 14(c) tender proper.
Lastly, the court addressed whether the Limitation
Action would be a bench or jury trial. The Court
noted that the core question centered around the
tension between the Limitation Act and the saving to
suitors clause created because the Limitation Act as an
admiralty action could preclude a claimants right to
pursue common law claims before a jury. The Court
noted that other courts recognize two exceptions to
proceeding with the Limitation Action: 1) where there
is only a single claimant; and, 2) where the total claims
do not exceed the value of the limitation fund. As neither
exception applied to the instant case, in accordance
with precedent, the Court held that the approach
which best eased the tension, was the bifurcation
approach, or deciding liability and limitation first in a
bench trial and then lifting the stay to allow claimants to
choose where to litigate the remaining issues, including
damages.
Submitted by SPB
Bartel v. Alcoa Steamship Co., 805 F.3d 169 (5th

Cir. 2015)
Plaintiffs in these consolidated lawsuits alleged exposure to asbestos over the course of their work aboard
vessels for various employers and filed suit in state court
under the Jones Act and general maritime law. Each
plaintiff alleged that they had worked on at least one
United States Naval Ship that was owned by the Navy
but operated by civilian contractors. The defendants
removed the lawsuits to federal court claiming jurisdiction under the Federal Officer Removal Statute. The
district court remanded the suits to state court, and the
defendants appealed.
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First Quarter 2016

The Fifth Circuit noted that the defendants were
required to show that they were acting pursuant to a
federal officers direction and that there is a causal
nexus between the defendants actions and the plaintiffs
claims. Defendants relied on the fact that they agreed to
crew Navy ships with civilians established both prongs
of the test. The Fifth Circuit noted that the defendants
could not show that the government exercised oversight
of operations aboard ship or issued any orders regarding
safety procedures or exposure to asbestos. As such, the
court found no basis for overturning the district courts
remand order.
Submitted by KMM
Nassau Cnty. Bridge Auth. v. Olsen, 2015 U.S. Dist.

LEXIS 125520 (E.D.N.Y. Sept. 19, 2015)
A 260-foot barge under tow collided with and damaged
the northwest fender system of the Atlantic Beach
Bridge in Nassau County. Nassau County Bridge
Authority (NCBA) sued the tug captain, the tug
owner and the owner pro hac vice of the barge in state
court.
The tug captain and tug owner filed a timely notice of
removal pursuant to 28 U.S.C. 1333, 1441, and 1446
on the basis of "admiralty jurisdiction." NCBA moved
to remand the action to state court on the basis that: (1)
its negligence claim did not raise a federal issue or, if it
did, the federal issue was not substantial enough to merit
exercising federal jurisdiction; and (2) the amendments
to 28 U.S.C. 1441 did not change the operation of
removal in admiralty cases.
The defendants argued that NBCAs common law
negligence claims arose under federal law because
NBCA asserts that defendants violated 33 C.F.R.
117.1. The Court disagreed because: (1) the violation
of the federal statute in not a necessary component of
NBCAs claim in that it can prevail on the claim without
resorting to the federal regulation; (2) even if an interpretation of the federal statute was necessary to resolve
the negligence claim, there is no indication that an interpretation of the statute implicates important federal
interests; and (3) recognizing federal jurisdiction on
the basis that the case involves violation of a federal
statute as evidence of negligence would dramatically
expand federal jurisdiction over claims traditionally
tried in state courts.

The Court also disagreed that the amendments to 28
U.S.C. 1441 allowed for removal of cases on the
basis of admiralty jurisdiction. The Court noted that
there was no indication in the legislative history of the
2011 amendments to 28 U.S.C. 1441 that Congress
intended to alter the "savings to suitors clause, and
that, to the contrary, the House Report on the 2011
amendments indicates that Congress intention was
procedural and not substantive. As a result, the court
held that, without an independent basis of federal jurisdiction, the admiralty claim was not removable 28
U.S.C. 1441.
As the defendants failed to sufficiently show any other
basis of federal jurisdiction, NCBAs motion to remand
was granted.
Submitted by SPB
Nustar Energy Services, Inc. v. M/V COSCO AUCKLAND, 2015 U.S. Dist. LEXIS 145036 (S.D. Tx. 2015)
This case addresses the requirements for a Rule 22 interpleader in the context of maritime liens. Plaintiff Nustar
asserted maritime liens against four vessels owned by
defendant COSCO for the value of fuel oil Nustar had
delivered. COSCO then sought interpleader relief,
naming ING Bank as a third party defendant, arguing
the COSCO vessels were facing competing claims for
the same bunker deliveries. Nustar moved to dismiss the
interpleader of ING Bank, arguing it was improper, as
Nustar had secured its claim by reaching an agreement
with COSCO whereby Nustar would refrain from
arresting the COSCO vessels in exchange for COSCO
placing the disputed funds in escrow.
The Court reviewed the requirements of Federal Rule of
Civil Procedure 22, and of the interpleader statute, 28
U.S.C. 1335. The Court noted that, as ING Bank
argued, ING Bank was a secured party as to assets of
COSCO in bankruptcy, and therefore adverse to Nustar
in the present action. Therefore, the Court agreed with
COSCO that it was facing competing claims, from
Nustar and from ING Bank, for the same funds, and
the requirements for a Rule 22 interpleader were satisfied. Nustars motion to dismiss the interpleader was
denied.
Submitted by PML
49
First Quarter 2016

Philip v. Hornbeck Offshore Services, L.L.C., 2015 U.S.
Dist. LEXIS 133971 (E.D. La. 2015)
This action arose as a maritime personal injury case
when Philip, a rigger working for Longnecker Properties, Inc., was working aboard the M/V SILVERSTAR
when he allegedly tripped on a wooden board on the
vessels deck and fell. Hornbeck Offshore owned the
M/V SILVERSTAR which was chartered by Eni U.S.
Operating Co. at the time of the incident. Philip asserted
claims under the Jones Act and for maintenance and
cure, unseaworthiness, vessel negligence under the
LHWCA, and general maritime law negligence.
Motions for summary judgment were filed by Defendants as to Philips status as a seaman under the Jones
Act, Philips status as a borrowed employee, and
Philips own negligence.
In regard to Philips status as a Jones Act seaman, the
parties disagreed as to whether Philip had a connection
to a vessel in navigation that was substantial in terms of
both its duration and its nature. The parties agreed Philip
had not spent at least 30 percent of his time aboard a
single vessel or aboard a fleet of vessels owned by
Longnecker. However, Philips Longnecker work
history chart showed that Philip had spent more than
46 percent of his time on vessels owned by Hornbeck.
Hornbeck and Longnecker argued that to satisfy the
durational element of the second Chandris prong,
Philip must have spent at least 30 percent of his time
on a fleet of vessels under the common ownership of his
employer rather than on a fleet of vessels under the
common ownership of a third party such as Hornbeck.
The court found that Philip satisfied the duration
requirement finding no reason to require that the
employer own or operate the group of vessels on
which a plaintiff spends at least 30 percent of his time
when the employer need not own or operate the single
vessel on which a plaintiff spends at least 30 percent of
his time. However, the court found that summary judgment on Philips status as a seaman was improper
because based on the totality of those circumstances, a
reasonable jury could find that his connection to the
Hornbeck vessels was substantial in nature and that, as
a result, Philip was a Jones Act seaman.
In regard to Philips status as a borrowed employee, the
court found that nine factors should be considered
(control, work, agreement, acquiescence, termination
of original employer, tools and place of employment,
length of time, right to discharge, and obligation to
pay). The court found that the facts presented were not

sufficient to establish that Hornbeck exercised control
over Philip. The court recognized that cooperation,
global oversight, and consultationas opposed to subordinationare insufficient to create a borrowed employee
relationship. The court further found that Philip was
performing Enis and Longneckers work and not the
work of Hornbeck. The court also found that Philip
did not present competent summary judgment evidence
that there was an agreement between Longnecker and
Hornbeck with regard to Philips work. The court found
that although Philip did not work on Hornbeck vessels
consecutively, Philip worked, ate, and slept on Hornbeck vessels for a total of 130 days prior to his
accident. The court stated that this was a sufficient
period of time for Philip to appreciate his new work
conditions. The court found that Longnecker never
relinquished its control over Philip. The court pointed
out that Philip slept and ate aboard a Hornbeck vessel
and the injury occurred on a vessel owned by Hornbeck.
The court determined that 130 non-consecutive days
out of 277 was not a considerable length of time.
Also, Hornbeck did not have the right to discharge
Philip. The parties did not dispute that Longnecker
had the sole obligation to pay Philip. The court ruled
that Philip failed to create a genuine issue of material
fact as to whether Philip was Hornbecks borrowed
employee and thus granted summary judgment in
favor of Hornbeck.
Finally, the court found that summary judgment was
improper as to whether Hornbeck was negligent under
the LHWCA stating that there was conflicting evidence
in the record regarding the condition of the deck boards
aboard the M/V SILVERSTAR and that there was also a
dispute as to the location on the deck where Philip allegedly fell.
Submitted by PML
World Fuel Services Europe, Ltd. v. Thoresen Shipping

Singapore Private Ltd., 2015 U.S. Dist. LEXIS 169298
(S.D. Ala. Dec. 18, 2015)
Plaintiff filed suit alleging he was entitled to a Rule B
attachment to obtain jurisdiction of defendant in the
court. Once the vessel was arrested, plaintiff released
it as no further security was necessary. Defendant then
moved to dismiss the claims against it.
The district court found the threshold issue was whether
the Court had continued jurisdiction of the case after the
50
First Quarter 2016

vessel was released from arrest where the owner made a
limited appearance on behalf of the vessel. The court
found that the release of the vessel terminated its jurisdiction over the case under Rule B. Thus, the action was
dismissed.
Submitted by KMM
Punitive Damages
Collins v. A.B.C. Maine Towing, L.L.C. and Board of

Commissioners Port of New Orleans, 2015 U.S. Dist.
LEXIS 139810 (E.D. La. 2015).
On August 12, 2014, the M/V COREY MICHAEL,
owned and operated by ABC Marine Towing, L.L.C.,
was towing a crane barge though a Canal in Orleans
Parish, Louisiana towards the Mississippi River. The
mast of the crane barge allided with the Florida
Avenue lift bridge causing the crane boom to fall onto
the pilot house from which Captain Michael Collins was
operating the M/V COREY MICHAEL, resulting in
Captain Collins death.
Captain Collins widow, Michelle Collins, sued ABC
Marine, alleging negligence under the Jones Act and
unseaworthiness; sued the owners of the crane barge,
Boh Bros. Construction Company alleging general
maritime negligence; and sued the Board of Commissioners as owner and operator of the bridge alleging
general maritime law negligence. In plaintiffs second
amended complaint and Boh Bros answer, cross claim,
and third-party compliant, Michelle Collins and Boh
Bros. both alleged gross negligence by the Board and
sought punitive damages. The Board brought a motion
for summary judgment to dismiss the claims for punitive
damages.
Punitive damages may be awarded against a non Jones
Act defendant who has acted willfully and wantonly, in
reckless disregard of, or with indifference to, the rights
of the plaintiff. In this case there was no evidence that
the Board knew or had reason to know that its operation
of the bridge presented a high risk of harm as there were
no prior accidents or near misses or that the way in
which the bridge tenders were raising the bridge
created a high risk of allision with the lift span. The
Court found that even if the Board trained its bridge
tenders or ratified their practice to only raise the
Bridge to a safety margin above a requested height

(which conflicted with federal regulations), that did not
rise to the level of recklessness.
The Court found that despite factual disputes, there was
no basis to find willful misconduct or gross negligence
of the Board and therefore the Boards motion for
summary judgment on punitive damages was granted.
Submitted by PML
Howard v. Offshore Liftboats, LLC, 2015 U.S. Dist.

LEXIS 157173 (E.D. La. Nov. 20, 2015)
The issue before the court was whether a seaman could
bring a claim for punitive damages against a non-
51
First Quarter 2016

employer third party under the general maritime law.
The court concluded that such a claim was barred by
the Fifth Circuits decision in Scarborough v. Clemco
Industries, 391 F.3d 660 (5th Cir. 2004). The court
further found that Scarboroughs holding was not
affected by the Supreme Courts decision in Atlantic
Sounding Co. v. Townsend, 557 U.S. 404, 129 S. Ct.
2561, 174 L. Ed. 2d 382 (2009) because that decision
was limited to the maintenance and cure context and did
not address a seamans other claims. As such, the plaintiffs punitive damages claims were dismissed.
Submitted by KMM
52
First Quarter 2016
Contributors
DJC
Daniel J. Cragg
Eckland & Blando
DCragg@ecklandblando.com
KMM
Kevin M. McGlone
Sher, Garner, Cahill, Richter, Klein, & Hilbert
KMcGlone@SherGarner.com
PML
P. Michael Leahy
Moseley, Pritchard, Parrish, Knight & Jones
PMLeahy@mppkj.com
SPB
Samuel P. Blatchley, Esq.

Pierce Atwood LLP
SBlatchley@pierceatwood.com
53
First Quarter 2016
CHURCHILL GOES TO WAR, Winstons Wartime Journeys, Brian Lavery,

374 pp., plus Photos, Diagrams, Notes, Bibliography and Index Naval
Institute Press, Annapolis, 2007.
By F. L. Wiswall, Jr.
So much has been written both by Winston Churchill
and about him, that it seems almost impossible a new
scenario could emerge yet one has done it and this
work is both educative and highly entertaining.
This book details the events of 14 journeys abroad1
that Churchill undertook while Britain was at war. The
detail of Winstons doings and of those who travelled
with him is astonishing; the reader feels like an extra
passenger with eyes and ears everywhere. At the outset
one should be clear that there was opposition to
Churchill leaving Britain before each and every one of
his travels. It was his spirit and insistence that overcame the objections, and he was aware of the dangers
of injury and death, and also of capture; on one voyage
he went to the pilot and asked: You know what Hitler
would do to me if he ever got his hands on me, dont
you? The pilot nodded, and Churchill said: But
youre not going to let him do that, are you Captain?
On a later voyage in RMS Queen Mary the subject of
capture came up; Winston stated I wont be captured.
The finest way to die is in the excitement of fighting
the enemy.
In July of 1941 word was passed to Churchill that President Roosevelt would like to meet with him. It was
decided that this should be at a place nearly midway
between the UK and the USA, which made Placentia
Bay in Newfoundland an ideal spot. On 3 August the
British party set off on a train for Scapa Flow, where
they boarded the battleship HMS Prince of Wales for
the voyage. Churchill was put into the Admirals quarters, but these were aft over the propellers where the
noise and vibration drove him out; he settled on the
Admirals Sea Cabin under the bridge, much smaller
but quiet and with a great view of the ship and sea.
Each evening featured an-after-dinner movie selected
personally by Winston; some were popular with all,
but others with the Prime Minister alone. At Placentia
Bay they rendezvoused with the cruiser USS Augusta
bearing Roosevelt, who came aboard the Prince of
Some journeys were extensions of major travels, and not all

are mentioned.
Wales on the second day a Sunday for a church

service on the quarterdeck, much of which was filmed.
The real purpose of the trip was to work out a schedule
of what the United States could do to support Britains
war effort, and on what terms. The document agreed
upon was the Atlantic Charter and it did answer
most of the UKs greatest needs.
As to some journeys, Churchill did not wait for an invitation. As soon as news came of the attack on Pearl
Harbor he notified Roosevelt that it was vital they
should meet very quickly. The President was not enthusiastic for this because of the immense demands on his
time in Washington, but he relented to Churchills insistence. Because the Prince of Wales had been sent to the
Far East,2 it was decided that the P.M. should travel in a
twin to her, the HMS Duke of York the battleship was
brought to the Clyde and Churchill boarded on 13
December, directly taking over the Admirals sea
cabin. The very large size of Winstons party, which
now included his physician Lord Moran,3 as well as
several of the British Chiefs of Staff, was exceeded
by that of Lord Beaverbrook (then Minister of Supply)
with everything from valet to chef. Churchill had been
invited to stay at the White House and the battleship
arrived at Hampton Roads on the 22nd, the P.M. flew
to Washington and the rest of those in the party were
taken by train. There was quick agreement between
FDR and Winston on the major points, and after a day
off for Christmas Churchill addressed a Joint Session of
Congress, then went by train to Ottawa to address Parliament, followed by a return to Washington and shortly
thereafter by a badly-needed rest in Florida. On his
second return to Washington, it was agreed that there
should be an Anglo-American attack upon North Africa.
In mid-January, Churchill began his return home, but in
order to avoid a long sea voyage the Duke of York had
already left for Bermuda, with the P.M. and party flying
on in three Boeing Clippers to meet her. The Boeing 314
was a luxurious aircraft, and the trip to Bermuda went
2
Where she was sunk off Maylasia by Japanese aircraft on 10
December 1941.
3
Then Sir Charles Wilson.

so smoothly that Winston was determined to complete
the journey in the same way if possible. Though such a
flight in early 1942 was not without hazard, a BOAC
Clipper left Bermuda on 17 January with seven passengers including Lord Moran, and because of fog on the
south coast of England the trip was slightly extended
and she landed in Plymouth harbor on the morning of
the 18th. The remainder of the P.M.s party returned on
the Duke of York.
In June 1942, Churchill sought another meeting with
Roosevelt, and on the 17th with nine others in the
party he took a train to Stranraer and boarded the
Clipper; after a flight of 27 hours they landed in
Washington. The next morning Winston flew to Hyde
Park to meet with the President, and they agreed that any
landing in Europe needed to be postponed. That night
both travelled to Washington by train, and the next
morning while meeting with FDR Churchill was told
that the British forces had surrendered at Tobruk.
After a trip to South Carolina to see a US Army parachuting drill, the party boarded the Clipper in Baltimore
and following a stop in Newfoundland for re-fueling
and a breakfast of lobsters, they landed at Stranraer
on 26 June.
In July, Churchill became determined to go to Cairo to
consult with British military leaders. Meanwhile a new
aircraft had become available, the B-24 Liberator, with a
range of 2,100 miles. Unusually, the best pilot for this
plane turned out to be an American, Bill Vanderkloot,
who with the crew he selected took off in the Liberator
Commando with Winston and a few others on the
evening of 1 August. They flew to Gibraltar for an overnight rest much needed because the conditions
onboard the Liberator were opposite from those on the
Clipper; the large Pratt & Whitney engines made the
interior tremendously noisy, the accommodation was
unheated, there was cold air leaking in from the bomb
bay doors and the bunks were shelves with blankets
and no mattresses. On the next afternoon the Commando
departed and after a flight far to the south from the coast
landed in Cairo on the morning of 3 August. Following
the P.M.s discussions with the military Vanderkloot
was informed that the party, with the addition of
Averill Harriman, would proceed onward in the
Liberator on the 11th to Moscow, so that Churchill
could meet and confer with Joseph Stalin. With an overnight stop in Teheran for refueling the plane arrived in
Moscow on the late afternoon of the next day. After
meetings with Uncle Joe that began stormily but
54
First Quarter 2016

in three days ended amicably, on 16 August the Commando departed for Cairo again with an overnight stop
in Teheran. On 21 August the voyage back to Britain
began, likewise with an overnight stop in Gibraltar.
In late 1942 with successes in the North African
campaign, it was decided by Roosevelt and Churchill
that there should be a tripartite conference in the former
Vichy French territory. Stalin refused to leave Russia
and Winstons wish to travel by sea was vetoed
because of the U-Boat threat. Nonetheless the President
and P.M. were determined to meet and on 13 January the
Commando with improved accommodations departed
on a direct flight to Casablanca. Several aircraft were
required to transport much of the party, with equipment
and communications gear arriving by ship. The motorcade to the meeting point was a command car, 15
automobiles, several 7o ton trucks with equipment,
11 escort motorcycles and several 2o ton trucks with
American troops. The President brought a working
party of only ten, including his confidante Harry
Hopkins and the military Chiefs of Staff and their
aides, but with a large number of security staff. It was
fairly quickly decided that the next objective should
be Sicily, and that American bombing of Germany
would begin that month. Winston persuaded FDR to
come with him to Marrakech, a placed he knew well
from former times. They stayed in an elaborate villa,
and watched the sun set on the Atlas Mountains.
Following this short holiday Roosevelt returned to
Washington and Churchill pressed on to Cairo on 25
January, where after a short rest he flew to Turkey to
try to persuade the government into more active opposition to the Germans. The Turks were not prepared to go
so far, but the visit was considered a great social success,
and laid groundwork for a later approach. With a stop
in Cyprus then a UK colony they returned to Cairo,
the next day to Tripoli to visit British troops, and then to
Algiers to consult with Admiral Cunningham and
General Eisenhower. Upon returning to London
Churchill was diagnosed with pneumonia, an affliction
that visited him several times during the War.
In April 1943, the principal British officers in India were
invited to Washington to consult with the US Chiefs of
Staff. Winston feared this could turn into pressure to
direct more offensives to the Pacific with losses to the
efforts in Europe; he decided that it was necessary for
him to attend in order to prevent such an occurrence. He
was told to travel by sea because the medical people did

not want him to fly after a bout with pneumonia. The
RMS Queen Mary unlike the RMS Queen Elizabeth
had entered civilian service just before the war, and
when she was converted to a troopship all the finery
from her cabins was removed and stored methodically
on the Clyde. Therefore all the fittings for the uppermost
exclusive cabins were dug out and refitted to the ship;
this enabled great comfort and the carriage of a vast
working party for Churchill, his staff and the staffs of
the British service chiefs. Women as secretaries and
typists were never allowed on the warships used in
transport, but they were present in significant numbers
on the Queen Mary and had very good circumstances for
work. On 5 June the aircraft carrier HMS Indomitable
left to screen the voyage and in the late afternoon the
Queen Mary sailed in order to have the cover of night.
Even on a somewhat circuitous course, the ship travelled
much faster than the warships, and docked at Staten
Island on the morning of 11 June; all the official party
were transferred to a train direct to Washington and that
afternoon Churchill opened the Trident Conference in
the Presidents office in the White House. It was discovered that there were differences between the American
services: Admiral King wanted maximum effort in the
Pacific, but General Marshall felt a European invasion
should begin at the earliest possible moment. Marshall
favored invasion of France, but Churchill tried to
persuade him of an attack via Italy; finally Winston
persuaded FDR to let him take Marshall to the Mediterranean to show him the Italian advantage. This time
they had to fly, and the BOAC Clipper took them via
Newfoundland to Gibraltar. There Churchill was introduced to his very own specially-outfitted plane, an Avro
York that he named Ascalon; it was somewhat noisy
powered by Rolls-Royce Merlin engines as used in the
Spitfire, but quieter than the Commando and very well
fitted out. With an all-RAF handpicked crew they flew
to Algiers on 28 June where Churchill and Marshall
conferred with Cunningham and Eisenhower, who
aided in persuading Marshall that a strike at Italy
would be the best alternative. Winston went on to
Tunis (and Carthage) and then returned to Algiers,
parted company with Marshall, and flew on to London.
The decision to invade Italy precipitated another bilateral conference, this time to be held in Quebec where
the Prime Minister of the host State, Canada, was not to
be allowed to participate. The grounds were that this
would open the deliberations to many co-allies, and
FDR was firm in rejecting a United Nations approach
55
First Quarter 2016

to strategy; the Canadians bore this well and their P.M.,
Mackenzie King, attended most of the social events.
Churchills working party for this Operation Quadrant consisted of 205 individuals plus 61 Royal
Marines; this meant that travel by sea was essential
and again the Queen Mary was refitted and pressed
into service, sailing from Greenock on 5 August and
docking in Halifax on the 9th, where all the party
were placed on two special trains for Quebec. Churchill
and Roosevelt were housed in the Citadel, at the top of
Quebecs rise, and the rest of the party was accommodated and worked in the grand hotel Chateau Frontenac.
The principal outcomes of Quadrant were an agreement to operation Overlord, the invasion of France in
1944, and that the commander of it should be an American. This last was devastating to Field Marshal Lord
Alanbrooke,4 Chief of the British General Staff, as
Winston had promised him twice before that he would
command the great assault. After the conference and
some travel in the US and Canada, owing to concerns
about Churchills flying at high altitudes, return by sea
was necessary; as the Queen Mary was not soon enough
available, the sole surviving British battlecruiser, HMS
Renown, was drafted as the principal ship. She was more
lengthy and faster than the later battleships, and was
armed with 15-inch guns in three turrets; even with
substantial alterations of course to evade waters
known to harbor U-Boats, she departed Halifax on 14
September and docked in the Clyde on the 19th. The
Admirals quarters aboard the Renown were superior to
those of the Prince of Wales or the Duke of York and
they accommodated Winston and his wife and daughter
very well. From this time women secretaries, typists and
clerks were allowed to come along as official passengers
aboard a warship, so the P.M. also used the Admirals
Sea Cabin; however, with less width the Renown tended
to roll more than the battleships and this sometimes
made working quite difficult at the bridge level.
In Quebec both Roosevelt and Churchill agreed it was
essential to have a tripartite conference with Stalin.
Stalin agreed but would not willingly leave Russia and
proposed meeting at Archangel or Astrakhan; this was
unacceptable to Roosevelt who felt he could not safely
conduct the business of the Presidency from within
Russia. After considering the plus and minus points of
various locations, it was decided that Teheran would be
best as Stalin could return to Russia quickly and FDR
4
Then Sir Alan Brooke.

and Winston could meet in advance in Cairo. Because of
the dangers of flying for Churchill it was decided to sail
in Renown again for the portion of the trip involving the
highest altitude and most turbulent parts of a flight. The
battlecruiser sailed from Plymouth on 12 November and
docked in the Grand Harbor at Malta on the 17th with
brief stops at Gibraltar and Algiers en route. The ship
stayed in Malta for two days and it was then decided that
the Renown should complete the voyage; she docked in
Alexandria on the 21st and the party was flown in a few
minutes to Cairo at low level. The Churchill-Roosevelt
conference was held at Giza near the Great Pyramid, and
primarily discussed the problems with the Italian
campaign and the planned invasion of France.
They were then joined by Chiang Kai-shek, with whom
Stalin refused to meet because the Soviet Union was not
at war with Japan; this addition opened discussion of the
continental war in the Far East and India. Regarding the
Chinese contingent watchers were most impressed by
Madame Chiang the daughter of Sun Yat-sen and
most felt her to be the dominant force in China.
After this Churchill proceeded to fly to Teheran in the
York on 27 November and the conference began in the
Soviet Embassy on the 28th, with the military chiefs
explaining the plans for invading France on the 29th.
At dinner that evening Stalin exclaimed that 50,000
German officers would need to be shot at the end of
the War; Roosevelt countered that really only 49,000
needed to be shot, but neither of the comments
pleased Winston. The 30th was Churchills 69th
birthday, and there was what became a very friendly
party; despite that on the next day the topic turned to
post-war settlement, and while it was agreed to set up
the United Nations as an international body, it became
clear that Poland would be a particular problem.
Churchill declared that Britain had declared war
because of the invasion of Poland and wanted guarantees that she would be free and democratic; Stalin
refused to commit and of course it would take
nearly a half-century before Poland emerged from
Soviet rule.
On 2 December the parties departed and Winston flew in
the Ascalon to Cairo, and the next day he and FDR flew
to Turkey; following hard argument the Turks were
no more inclined than before to declare war even if they
were not required to participate. After conferences in
Cairo with British officials in the Mediterranean
region and a meeting with King Farouk of Egypt,
56
First Quarter 2016

Churchill flew to Tunis on the 10th to stay with
General Eisenhower in Carthage. Already needing a
rest, Winston took a chill in Tunis and again contracted
pneumonia; following 5 days of doubtfulness concerning the speed of his recovery Mrs. Churchill came
to Carthage. Ultimately on 27 December they flew to
Marrakech where it was believed he would recover more
quickly, and this turned into a stay of more than two
weeks. As time went on there were more visitors to
discuss military affairs and international and British
politics as well as Prime Ministerial business; there
were dinner parties and proofs that Winston had not
lost his taste for brandy and Champagne. Ultimately
on 14 January they flew on the Ascalon to Gibraltar,
where Churchill and what remained of his party from
December immediately boarded the battleship HMS
King George V and sailed; late on the 16th they
docked at Plymouth and transferred to the Kings own
train to overnight to London. On the 17th Churchill
appeared in the Commons, receiving tumultuous cheers.
The next voyage for Winston was in June 1944 in HMS
Kelvin, a destroyer that enabled him to tour the attack
front in France by Jeep and DUCKW only six days
after D-Day. A post-invasion Anglo-American conference was seen as necessary in the near future, and
Quebec was chosen again as the best site. The chief
problem was that Roosevelt wanted a small gathering,
whereas Churchill felt he needed a large working party.
As before, the Queen Mary was refitted and a slightly
reduced party boarded her on 5 September; she docked
in Halifax on the 10th and the passengers were
embarked on a 21-hour train trip to Quebec. Once
more Winston and FDR were housed at the Citadel,
and after a plenary session the conference between the
chiefs of staff at Chateau Frontenac began on the 13th,
discussing not only progress in Europe but also the
Pacific war, which the Royal Navy was now free to
join. A final plenary was held on the 16th, and afterwards Churchill and Roosevelt were granted honorary
degrees by McGill University. The next day the British
party left by train for New York to board the Queen
Mary for the return voyage. On the 18th Winston
visited FDR at Hyde Park and the Duke of Windsor
attended at lunch; when he was King Edward VIII
Churchill had supported him, but in the time since his
abdication he had been attracted to Germany under the
Nazis and relations were now awkward. On the 19th the
P.M. and wife took a train to Manhattan and boarded
the ship, which docked in the Clyde on 25 September.

No sooner had Churchill returned to London than he
began to plan for a trip to Moscow; Stalin absolutely
would not leave as he said it had taken weeks for him to
recover from the Teheran conference. Once the bare
details were arranged, beginning early on 8 October
the Ascalon carried the P.M. to Naples, then to Cairo;
because of damage to the landing gear from an awkward
landing in Cairo the party transferred to another York
and left early on the 9th for Moscow via Crimea. At the
airport there was a vast welcoming party with officials,
bands, honor guard, etc. and a demand for a speech from
Churchill; he was then assigned accommodations in a
dacha 20 miles from the city, but also given the use of a
small house near the center. There were tours of the city
and an opportunity for shopping, but few and very
expensive goods; there were symphonies and two
operas, and ballets. The visit lasted ten days, but
despite the entertainments and floods of caviar and
vodka much time was spent in discussion; the American
Ambassador, Averill Harriman, attended throughout
and was accompanied by military attaches and some
imported officers, though Roosevelt had sent a
formal message that Harriman did not have authority
to make any commitments on behalf of the United
States. There was discussion of the war in the Pacific,
with a commitment by Stalin to actively join the fight
against Japan within three months of the surrender of
Germany; however, the main business was the post-war
division of Europe, with 13 October set aside to deal
with Poland. For this the London Poles recognized
by America and Britain as the government in exile and
the Soviet contingent the Lublin Poles were admitted
to the discussion; it quickly developed that there was
absolutely no ability to agree, and of course the occupation of Poland by the Red Army became the deciding
factor. A huge banquet in the Kremlin was held on the
18th and on the 19th the participants left Moscow,
Winston in the repaired Ascalon with Stalin at the
airport in the rain to see him off. The flight was to
Crimea with an overnight at Simferopol, preceded by
a lavish dinner, and on the 20th they flew to Cairo for
the night and on the 21st to Naples for another overnight; on 22 October they landed at RAF Northolt near
London.
In Casablanca and Teheran the British aviators admired
the US Presidents aircraft, the C-54 or Skymaster; it
was rather a source of shame to Air Marshal Portal the
RAF Chief of Staff that the best that the UK could
come up with for their Prime Minister and wartime
57
First Quarter 2016

leader was the Avro York. A larger and improved
Skymaster could have a range of 4,600 miles without
refueling, and both Portal and Churchill were determined to obtain one; Winston had a personal
discussion with General Hap Arnold, Chief of the
US Army Air Corps, and persuaded him to obtain a
Skymaster for Churchills own use; in late May of
1944 Arnold reported that his C-54B was ready for
delivery. There could of course be problems if it
became widely known that the British P.M. was flying
about in an American plane; the only answer was to
make it look as British as possible. Though due to
bureaucratic mismanagement and a bit of indecisiveness
as to final details it was not ready until December, but it
was regally finished and equipped.
Churchill had for some time been unhappy about
Greece, and felt it was time to ensure a stable government there that would not be upset by Communist
partisans. The Skymaster began its maiden voyage at
the very beginning of Christmas Day, 1944, and flew
Winston and his party in great comfort to Naples and
then to Athens; there was an attempt to hold meetings in
the airplane, but it was so cold that it was decided to take
everyone to a British warship in Piraeus. HMS Ajax was
a famous ship one of the three cruisers that forced the
abandonment and scuttling of the battlecruiser KM Graf
Spee at Montevideo in 1939 and had seen much action
in the Mediterranean earlier in the War. The whole party
from the Skymaster was warmly welcomed and extremely well treated on the Ajax and Churchill decided to
invite the Greek Prime Minister Papandreou and the
Orthodox Archbishop Damaskinos aboard as a prelude
to talks ashore at the Embassy and the Greek Ministry of
Foreign Affairs. The party went ashore twice in the next
days, and the talks between the government and the
representatives of the ELAS partisans did begin to
produce some agreement, which became successful for
the time being. It was however judged too dangerous for
Churchill to remain longer in Athens, and in the afternoon of the 30th the party departed for an overnight in
Naples and then on toward a fogbound London, making
it necessary to land at the American Airbase at
Bovington on New Years Eve. All agreed that the
Skymaster was a marvelous aircraft and very appropriate for the wartime Prime Minister.
It soon became clear that there was a need for a further
three-power conference in order to plan the final
destruction of the Nazi regime, to settle the post-war
situation in Europe and to make plans for the defeat of

Japan. As Stalin simply would not travel outside any
area of direct control by the USSR, the location
became a vexing situation; neither Churchill nor Stalin
was aware of Roosevelts rapidly declining health, and
unspokenly this also imposed limitations. After a great
deal of debate, Yalta in the Crimea was settled upon
as the easiest place to reach in the USSR and with the
best climate in the winter. The British would have to
send most of the preparatory forces including a ship
fitted for accommodation of Winston and FDR and
also serving as a communication center with Washington and London; because the harbor at Yalta was
infested with German and Russian mines incapable of
being cleared in sufficient time, she was to be moored
in advance in Sevastopol.
The operation was named Argonaut and the ship
chosen was a small Cunarder, SS Franconia, which
had served in the War with distinction as a troopship;
her Captain, Harry Grattridge, had begun his career on a
4-masted sailing vessel in 1906, joined Cunard in 1914,
served as an officer in the RN Reserve in both wars and
knew the approaches as he had captained a minesweeper
in the Dardanelles. He was summoned by the First Sea
Lord, Admiral Cunningham, to a meeting on 11 January
1945 and told of the plans including his own supervision
of quickly refitting the Franconia; to ensure success,
several of the catering and other staff of the Queen
Mary who had served on earlier Churchill voyages
were transferred to Franconia for the duration of Argonaut. In addition to a large number of Marines and
secretaries, typists, and others to support the working
party, Franconia would have to carry extra food and
46 vehicles for use as transport to and from Yalta; all
this was done in record time, as she sailed from Liverpool on the 17th docked at Malta on the 25th and
accompanied by the Kelvin left for the Dardanelles on
the 26th. Churchill, the service Chiefs and key members
of the party left by air on 29 January to spend time in
preparation at Malta; the P.M. was housed on the cruiser
HMS Orion in the Grand Harbor, and the others mostly
ashore.
On 23 January Roosevelt sailed from Hampton Roads
on the USS Quincy as he could not travel by air, but
also carried a working party of 125; she docked at Malta
on 2 February. Winston went to the Quincy for dinner on
the 2nd with FDR, and then both went afterward to the
airfield at Luqa to fly to Crimea in their Skymasters, at
low altitude for medical reasons; the Soviets suggested
the airfield at Saki, that had better runways than Sarabuz
58
First Quarter 2016

which was closer to Yalta. This meant that all the vehicles brought in the Franconia would be needed, as good
runways meant more bad roads, between 70 and 100
miles depending upon the weather and route. Crimea
had been captured and recaptured three times during
the War, and what everyone saw immediately was that
the Germans finally trashed everything left when they
pulled out for the last time in retreat; virtually nothing
had been left undamaged.
In fairness, the Russians had done a superb job in
readying facilities for the conference, and the principals
were accommodated in three palaces the famed
Livadia Palace built by Tsar Nicholas II and used
by Roosevelt, another by a Russian Prince named
Vorontsov once ambassador to Britain and used by
Churchill, and finally one owned by Yusopov the assassinator of Rasputin, used by Stalin. On the bright side all
the waiters and staff for the American and British
palaces had been imported from the Metropole Hotel
in Moscow and there was food and drink in abundance;
on the negative, both residences were infested by
bedbugs. Roosevelts poor health was obvious to all
who saw him; Lord Moran wrote that to a doctors
eye, the President appears a very sick man. He has all
the symptoms of hardening of the arteries of the brain in
an advanced stage, so that I give him only a few months
to live. For that reason, the conferences of the principals took place in the Livadia Palace. Matters of waging
the ending War were largely passed over, and the status
of Europe was the dominant subject; once again generalities were agreed upon but Stalin refused to be drawn on
the fate of Poland. Roosevelt was accompanied by the
new US Secretary of State, Edward Stettinius, who
wished to settle the basic structure of the United
Nations; Stalin wanted a separate identity and voice
for each member of the Soviet Republic, including individual membership of the Security Council, but faced
with the certainty that there would be no UN on this
basis, he agreed that permanent members with a veto
would be the USSR, USA, Britain, France, and China.
On 11 February, the principals issued a joint statement,
and Churchill retired to the Franconia, working there
until on the 13th he went on a trip to the site of the
Charge of the Light Brigade in the Crimean War.
Winston flew to Athens on the 14th to confer with
British officials, and on the 15th to Alexandria where
he had lunch with FDR aboard the Quincy; Roosevelt
bade him goodbye and sailed that afternoon the last
time they would see each other. Churchill stayed on near

Cairo to meet King Ibn Saud of Saudi Arabia, who was
less than happy that Winston smoked cigars and drank
alcoholic beverages during a formal dinner; he later met
the King of Egypt and the President of Syria. On 19
February the P.M. flew to England, and the remainder
of his Yalta party made their way home by various
routes.
News came of Roosevelts death on 12 April, and by
this time MacArthur had re-taken Manila, Iwo Jima had
been captured, and the Okinawa assault was underway;
in Europe the Rhine had been crossed, the V-2 blitz of
England had ended, the Red Army had liberated Auschwitz, the British Belsen, and the Americans Dachau, and
the Soviet invasion of Poland had captured Danzig. The
Germans surrendered unconditionally on 8 May and this
necessitated another tripartite meeting to make final
post-war decisions.
The site chosen was Potsdam, which was an area near
Berlin that had not been utterly destroyed; it was in the
Soviet Sector but had a number of very fine residences
and was close to the Cecilienhof Palace built by the
Crown Prince in 1914 and the best site for the conference. By chance, July 1945 was also the time for a
British parliamentary election on the 26th, and
Winston was campaigning fully although the Conservatives were widely expected to win; in light of the
election he decided that Clement Atlee, the head of the
Labor Party should be included in the group of key
representatives of the UK in Potsdam. On 15 July
Churchill and Atlee boarded the Skymaster and by a
devious route flew to Gatow, an airfield southwest of
Berlin. Winston had never met Harry Truman but at
their first encounter on the 16th they took an immediate
liking to each other; the P.M. had been told about development of the atomic bomb, and before the conference
began that afternoon the notice came of a successful test
of the weapon at Alamogordo. Truman had crossed the
Atlantic in the cruiser Augusta, and used the time to
study relevant papers and discuss points with his officials in their party, so he was well prepared. Stalin
actually needed no preparation, as the Red Army
59
First Quarter 2016

already occupied all the territory he was interested in;
he simply had to hold the line. On 21 July the British
organized a victory parade through Berlin, and the
Americans participated; a featured unit was the
Desert Rats who had defeated Rommels forces in
North Africa. At the end of the eighth session of the
conference on the 24th, Truman took Stalin aside and
told him about the atomic bomb; he thought Stalin
would be more surprised, but of course Uncle Joe
knew all about it from his Soviet spies in America.
Churchill flew to London on the 25th to hear the
results of the election the next day. The Conservatives
were soundly defeated; on the evening of the 26th,
Winston went to Buckingham Palace and tendered his
resignation to the King. Atlee was named as Prime
Minister and Churchill retired for the time being.
His wartime journeys were over.
Brian Lavery is a British naval historian, Curator Emeritus at the National Maritime Museum at Greenwich and
author of the highly and rightly acclaimed Churchills
Navy. An expert on the Royal Navy under sail, in one of
his achievements he was technical expert during the
making of Master and Commander, the film version
of some of Patrick OBrians early books. This is an
extremely well-written work with many interesting
photographs; it does, however, contain a number of
mistakes in dates and what can only be typos. None of
that matters to enjoyment of this book. It is very highly
recommended.
*****
F. L. Wiswall, Jr., J.D. (Cornell); Ph.D.jur.
(Cambridge); Fellow of the Royal Historical Society
and contributor to the Oxford Encyclopedia of Maritime History; Professor at the IMO Institute of
International Maritime Law; sometime lecturer at the
US Naval War College.
60
First Quarter 2016
TABLE OF CASES
A.D. v. C.A., 16 N.Y.S.3d 126, 128 (N.Y. Sup. Ct.
2015) ..................................................................... 7
Adams v. Texaco, Inc., 640 F.2d 618, 620 (5th Cir.
1981) ................................................................... 23
AGF Marine Aviation & Transp. v. Richard C. Cassin
Cit Grp./Sales Fin., Inc., 544 F.3d 255 (3d Cir.
2008) ................................................................... 29
Bratkowski v. Aspen Ins. UK, Ltd., 2015 U.S. Dist.

LEXIS 78536, at *1, 2015 AMC 1567 (E.D. La.
Jun. 17, 2015) ............................................... 24, 25
Bratkowski v. Cal Dive Intl, Inc., 2015 U.S. Dist.
LEXIS 51643, at *1-2 (E.D. La. Apr. 20, 2015) 24
Brown v. Parker Drilling Offshore Corp., 410 F.3d 166,
171 (5th Cir. 2005) ............................................ 26
AIG Centennial Ins. Co. v. ONeill, 782 F.3d 1296

(11th Cir. 2015) .................................................. 30
Calmar Steamship Corp. v. Scott, 345 U. S. 427, 442443 (1953) .......................................................... 32
Albany Ins. Co. v. Anh Thi Kieu, 927 F.2d 882, 1991
AMC 2211 (5th Cir.) .................................... 29, 33
Campbell v. Offshore Liftboats, LLC, 2015 U.S. Dist.

LEXIS 34981, 2015 AMC 1075 (E.D. La. Mar. 20,
2015) ................................................................... 27
Allied Concrete Co. v. Lester, 736 S.E.2d 699, 301-03

(Va. 2013) ........................................................... 11
Aponte v. Caribbean Petroleum Corp., 2015 U.S. Dist.
LEXIS 149126 (D. Puerto Rico 2015) ............... 47
Arctic Storm, Inc. v. Madrid, 2015 U.S. Dist. LEXIS
102323, at *2 (W.D. Wash. May 22, 2015) ....... 22
Atlantic Sounding Co. v. Townsend, 557 U.S. 404, 129
S. Ct. 2561, 174 L. Ed. 2d 382 (2009) .............. 51
Baker v. Raymond International, 656 F.2d 173, 178
(5th Cir. 1981) .................................................... 25
Bartel v. Alcoa Steamship Co., 805 F.3d 169 (5th Cir.
2015) ................................................................... 48
Bertram v. Freeport McMoran, Inc., 35 F.3d 1008 (5th
Cir.1994) ............................................................ 23
Blanchard v. United States, 2014 U.S. Dist. LEXIS
131958, at *2, 2014 AMC 2888 (W.D. La. Sept. 19,
2014) ................................................................... 22
Blanchette v. Conn. Gen. Ins. Corps., 419 U.S. 102, 134
(1974) ................................................................. 41
Bosarge v. Cheramie Marine LLC, 2015 U.S. Dist.
LEXIS 101768, at *7 (E.D. La. Aug. 4, 2015) .. 26
Boyden v. Am. Seafoods Co., 2000 AMC 1512 (W.D.
Wash. Mar. 21, 2000) ........................................ 22
Carter v. Boehm (1766) 3 Burr 1905 .................... 29

Certain Underwriters at Lloyds, London v. Giroire,
1998 AMC 2153, 2160, 27 F.Supp.2d 1306, 1312
(S.D. Fla. 1998) ............................................ 29, 31
City of Ontario, California v. Quon, 560 U.S. 746, 759
(2010) ................................................................... 7
155902 (E.D. La. Nov. 18, 2015) ................ 39, 47
Collins v. A.B.C. Maine Towing, L.L.C. and Board of
Commissioners Port of New Orleans, 2015 U.S. Dist.
LEXIS 139810 (E.D. La. 2015) .................... 46, 50
2:14-cv-1130 (E.D. La. filed May 19, 2014) 4, 5, 6
Davis v. Odeco, Inc., 18 F.3d 1237, 1244 n. 21 (5th Cir.
1994) ................................................................... 23
Farley v. Callais & Sons LLC, No. 14-2550, 2015 U.S.
Dist. LEXIS 104533, *11-14 (E.D. La. Aug. 10,
2015) ..................................................................... 8
Foret v. St. June, LLC, 2014 U.S. Dist. LEXIS 127317,
at *8-9 (E.D. La. Sept. 11, 2014) ...................... 26
Giacchetto v. Patchogue-Medford Union Free School
Dist., 293 F.R.D. 112 n.1 (E.D.N.Y. 2013) ...... 7, 8

Grubbs v. Gulf International Marine Inc., 13 F.3d 168,
170 (5th Cir. 1994) ............................................ 25
61
First Quarter 2016

Meche v. Doucet, 777 F.3d 237 (5th Cir. 2015) ... 26
Hall v. Diamond M. Co., 732 F.2d 1246, 1249 (5th Cir.

1984) ................................................................... 25
Melissa G v. North Babylon Union Free School

Dist., 48 Misc. 3d 389, 391-92, 6 N.Y.S.3d 445
(N.Y. Sup. Ct. 2015) ............................................. 8
Hedges v. Foss Mar. Co., 2015 U.S. Dist. LEXIS 10510,

*1-2 (W.D. Wash. Jan. 29, 2015) ...................... 25
MLanahan v. Universal Ins. Co., 26 U.S. (1 Peters)

170 (1828) .......................................................... 29
Helix Energy Solutions Group, Inc. v. Howard, 452 S.W.3d

40 (Tex. App. Houston-14th Dist. 2014) ................. 23
Mutual & Fed. Ins. Co. v. Oudshoorn Municipality,

(1985) 1 A.D. 429, 433 (S.A. Sup. Ct. App. Div.) 33
Hicks v. Tug Patriot, 783 F.3d 939, 941 (2d Cir.

2015) ................................................................... 27
N.Y. Marine & Gen. Ins. Co. v. Contl Cement Co.,

LLC, 761 F.3d 830, 837 (8th Cir. 2014) ........... 29
HIH Marine Servs. v. Fraser, 211 F.3d 1359, 1362

(11th Cir. 2000) .................................................. 29
Nassau Cnty. Bridge Auth. v. Olsen, 2015 U.S. Dist.

LEXIS 125520 (E.D.N.Y. Sept. 19, 2015) .......... 48
Howard v. Offshore Liftboats, LLC, 2015 U.S. Dist.

LEXIS 157173 (E.D. La. Nov. 20, 2015) ........... 51
Newill v. Campbell Transp. Co., Inc., 96 Fed. R. Evid.

Serv. 527 (W.D. Pa. 2015) ................................... 8
Jefferson v. Baywater Drilling, LLC, 2015 U.S. Dist.

LEXIS 9314, at *20, 2015 AMC 571 (E.D. La. Jan.
27, 2015) ............................................................. 28
Nucci v. Target Corp., 162 So. 3d 146, 152 (Fla. Dist.

Ct. App. 2015) .................................................. 7, 8
Jones v. Waterman S.S. Corp., 155 F.2d 992 (3rd Cir.

1946) ................................................................... 23
Nustar Energy Services, Inc. v. M/V COSCO

AUCKLAND, 2015 U.S. Dist. LEXIS 145036 (S.D.
Tx. 2015) ............................................................. 49
Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 13 (2d Cir.

1986) ................................................................... 29
Penn Mut. Life Ins. Co. v. Mechanics Sav. Bank &

Trust Co., 72 F. 413, 434 (6th Cir. 1896) ......... 33
Kraljic v. Berman Enter., Inc., 575 F.2d 412, 415-16

(2d Cir. 1978) ..................................................... 28
People v. Harris, 945 N.Y.S.2d 590, 595 (Crim. Ct. New

York County 2012) ............................................... 7
Lloyds v. San Juan Towing & Marine Servs., 778 F.3d

69, 82 (1st Cir. 2015) ......................................... 29
Philip v. Hornbeck Offshore Services, L.L.C., 2015 U.S.

Dist. LEXIS 133971 (E.D. La. 2015) ................. 49
Maher Terminals, LLC v. Port Auth. of N.Y. & N.J., 805

F.3d 98 (3d. Cir. 2015) ...................................... 39
Puritan Ins. Co. v. Eagle S.S. Co. S.A., 779 F.2d 866,
870 (2d Cir. 1985) ....................................... 30, 29
Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D. 566,

570 (C.D. Ca. 2012) ............................................. 7
Queen Ins. Co. of America v. Globe & Rutgers Fire Ins.

Co., 263 U.S. 487, 493 (1924) ........................... 32
Malin International Ship Repair & Drydock, Inc. v.

MODU PROSPECTOR, 2015 U.S. Dist. LEXIS
143220 (S.D. Tx. 2015) ...................................... 39
Ramsay Scarlett & Co. v. Director, Office of Workers

Compensation Programs, 806 F.3d 327 (5th Cir.
2015) ................................................................... 40
Matter of Sea Ray Marine Services, Inc., 105 B.R. 12,

13 (Bankr. E.D. La. 1989) ................................. 24
Ruiz v. Shell Oil Co., 413 F.2d 310 (5th Cir. 1969) 25
McCorpen v. Central Gulf S.S. Corp., 396 F.2d 547 (5th

Cir. 1968) ........................................................... 26
McMillan v. Tug Jane A. Bouchard, 885 F. Supp. 452,
466 (E.D.N.Y. 1995) ........................................... 28
Savoie v. LaFourche Boat Rentals, 627 F.2d 722, 723

(5th Cir. 1980) .................................................... 23
Scarborough v. Clemco Industries, 391 F.3d 660 (5th
Cir. 2004) ........................................................... 51

St. Paul Fire & Marine Ins. Co. v. Abhe & Svoboda,
Inc., 798 F.3d 715 (8th Cir. 2015) .................... 30
Standard Oil Company of New Jersey v. United States,
340 U.S. 54, 59, 1951 AMC 1, 5 (1950) ........... 32
Stecker v. American Home Fire Assurance Co., 84 N.E.
2d 797, 799 (N.Y. 1949) ..................................... 33
Tyer v. Southwest Airlines Co. f/k/a Airtran Airways,
Inc., No. 14-cv-62899, 2015 U.S. Dist. LEXIS 97508,
*5 (S.D. Fla. July 27, 2015) ................................ 8
U.S. v. Meregildo, 883 F. Supp. 2d 523, 525-26
(S.D.N.Y. 2012) .................................................... 7
62
First Quarter 2016

Valero Marketing and Supply Co. v. M/V ALMI SUN,
2015 U.S. Dist. LEXIS 172258 (E.D La. Dec. 28,
2015) ................................................................... 46
Wilburn Boat Co. v. Firemans Fund Ins. Co., 348 U.S.
310, 323 (1955) .................................................. 32
Windsor Mount Joy Mut. Ins. Co. v. Giragosian, 57
F.3d 50, 1995 AMC 2542 (1st Cir. 1995) ... 30, 33
World Fuel Services Europe, Ltd. v. Thoresen Shipping
Singapore Private Ltd., 2015 U.S. Dist. LEXIS
169298 (S.D. Ala. Dec. 18, 2015) ..................... 50
63
First Quarter 2016
Benedicts Maritime Bulletin Editorial Board

Contact Information
Joshua S. Force
(Editor-in-Chief)
Sher Garner Cahill Richter Klein & Hilbert, L.L.C.
New Orleans, LA
jforce@SHERGARNER.com
Robert J. Zapf
(Managing Editor)
Thousand Oaks, CA
RJZapf1@verizon.net
Bruce A. King
(Immediate Past Chairperson
Marine Financing Committee)
Maritime Law Association
bkingseattle@msn.com
Dr. Norman A. Martinez-Gutierrez

(International Maritime Law; Scholarly Notes and Papers)
IMO International Maritime Law Institute
P.O. Box 31, Msida MSD 01 MALTA
Norman.Martinez@imli.org
Francis X. Nolan, III

Dr. James C. Kraska
Howard S. Levie Professor of International Law
(Marine Finance)
The Stockton Center for the Study of International Law Vedder Price P.C.
1633 Broadway, 47th Floor
United States Naval War College
New York, NY 10019
686 Cushing Road
fnolan@vedderprice.com
Newport, Rhode Island 02841-1207
James.Kraska@usnwc.edu
Anthony J. Pruzinsky
(Admiralty Practice and Procedure)
Hill Rivkins LLP
45 Broadway, Suite 1500
New York, NY 10006-3793
APruzinsky@hillrivkins.com
64
First Quarter 2016
Reporters/Associate Editors
Contact Information
Lizabeth L. Burrell
(MLA Affairs, Uniformity)
Curtis, Mallet-Prevost, Colt & Mosle LLP
New York, NY
lburrell@cm-p.com
Edward V. Cattell, Jr.

(Rivers and Towage, Pilotage and Limitation)
Hollstein Keating Cattell Johnson & Goldstein, P.C.
Philadelphia, PA
evc@hkcjg.com
Matthew A. Marion
(Environmental)
Marion Partners
Rowayton, CT
Marc Marling
(Technology)
Williams Mullen
Norfolk, VA
Howard M. McCormack
(Marine Arbitration and General Average)
Burke & Parsons
New York, NY
mccormack@burkeparsons.com
Michael B. McCauley
(Recreational Boating)
Palmer Biezup & Henderson, LLP,
Philadelphia, PA
JoAnne Zawitoski
(Stevedoring, Terminals and Ports)
Semmes Bowen & Semmes
Baltimore, MD
jzawitoski@mail.semmes.com
Graydon S. Staring
(Editor Emeritus, American Maritime Cases)
Past President, Maritime Law Association of
the United States
Retired from Lillick and Charles LLP and
Nixon Peabody LLP, San Francisco
starlaw@att.net
Columnists
Contact Information
Window on Washington
Bryant E. Gardner
Winston & Strawn LLP
Washington, DC
bgardner@winston.com
65
First Quarter 2016
Contributing Authors to this Issue

Contact Information
Marissa M. Henderson
Partner, Ventker Warman Henderson,
Norfolk, VA
mhenderson@ventkerlaw.com
Aaron Greenbaum
Pusateri, Barrios, Guillot & Greenbaum,
LLC, New Orleans, LA
Aaron.Greenbaum@pbgglaw.com
Douglas B. Stevenson, Esq.

Director, The Center for Seafarers Rights of
The Seamens Church Institute of New York
and New Jersey
dstevenson@seamenschurch.org
Alberto J. Castan~er
Partner, Castan~er Law Offices, P.S.C., San
Juan, Puerto Rico
alberto@castanerlaw.com
66
First Quarter 2016
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68
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Void v. Voidable: The Effect of The Breach of The Duty of Utmost Good Faith in Marine Insurance and Its Future in Light of The Uk Insurance Act 2015

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Vol. 14, No.

1  First Quarter 2016

Inside This Issue

MANAGING EDITORS INTRODUCTORY NOTE

By Douglas B. Stevenson .................................. 13

By Aaron B. Greenbaum, Esq. ......................... 22

VOID V. VOIDABLE: THE EFFECT OF THE BREACH

WINDOW ON WASHINGTON HAVANA:

RECENT DEVELOPMENTS ................ 39

14 Benedicts Maritime Bulletin

First Quarter 2016

14 Benedicts Maritime Bulletin

First Quarter 2016

MANAGING EDITORS INTRODUCTORY NOTE JANUARY 2016

14 Benedicts Maritime Bulletin

First Quarter 2016

E-Discovery, Facebook Shenanigans, and Fraud:The Crowe v.

Crowe v. Marquette Transportation started out as a

Crowe v. Marquette Transp. Co. Gulf-Inland, LLC, No.

hand on the LADY GUADALUPE, Robert Falsev, and

The screenshot of the Facebook message exchange is in the

The order appears in the courts record at Document Number

14 Benedicts Maritime Bulletin

First Quarter 2016

Crowe v. Marquette Transp. Co. Gulf-Inland, LLC, No.

Messenger is the popular mobile app that links to Facebook

Crowe v. Marquette Transp. Co. Gulf-Inland, LLC, No.

14 Benedicts Maritime Bulletin

First Quarter 2016

The jurys detailed verdict form is in the courts record at

14 Benedicts Maritime Bulletin

First Quarter 2016

Facebooks privacy settings, if utilized, do not generally

See, e.g., Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D.

Facebook did somewhat of an about-face in late 2014 when

See cf., U.S. v. Meregildo, 883 F. Supp. 2d 523, 525-26

People v. Harris, 945 N.Y.S.2d 590, 595 (Crim. Ct. New

Wikipedia, Scott McNealy Article, https://en.wikipe

Nucci v. Target Corp., 162 So. 3d 146, 152-53 (Fla. Dist.

14 Benedicts Maritime Bulletin

First Quarter 2016

These tips were drawn largely from the informative and

14 Benedicts Maritime Bulletin

Confirm accounts and user names identified in

How often and which platforms are used; number

What type of information is posted or shared: Kids

Any discussion of the lawsuit on social media,

Any altered or deleted content since the accident or

4. Develop a Reason to Obtain Social Media

First Quarter 2016

14 Benedicts Maritime Bulletin

First Quarter 2016

American Bar Association, Comment on Rule 1.1,

Crowe, Jan. 20, 2015 Order and Reasons (Document 32),

North Carolina State Bar, 2014 Formal Ethics Opinion 5,

14 Benedicts Maritime Bulletin

First Quarter 2016

How Do Counsel Ethically Advise Clients about Using

produce the account data, which showed he deleted 16

There are certainly ethical pitfalls. By simply telling

2. Adding New Social Media Posts

1. Taking Down Posts

The New York State Bar is on the cutting edge of

1 First Quarter 2016