Skip to main content


Showing posts from 2012

11th Circuit Affirms Judgment For Stevedores

A $3.5 million jury verdict against Miami-Dade County and a declaration that a county ordinance regulating stevedores was unconstitutional were affirmed Friday morning by the U.S. Court of Appeals for the Eleventh Circuit. The decision means that Florida Transportation Service Inc., which complained it was unfairly denied a permit to operate at the Port of Miami in 2003, 2004 and 2005, will collect a total $4 million in damages from the county.

 "The permitting practices did not further, but if anything rather disserved, the county's purported purposes and benefits," said the opinion by U.S. Circuit Judge Frank Hull, Senior Judge Emmett Ripley Cox and U.S. District Judge Donald Walter of Louisiana sitting by designation.

 U.S. District Judge Adalberto Jordan (who now sits in the Eleventh Circuit) in Miami ruled in 2008 that the ordinance on stevedores interfered with interstate commerce. Jordan ruled the county ordinance guaranteed work for the nine existing stevedore comp…

Florida Judgment in Favor of NMMA

The Daily Business Review reports that Florida's Third District Court of Appeals in a ruling dated December 19th affirmed  a summary final judgment in favor of the National Marine Manufacturers Association.
The recreational boat industry trade group, a participant in the 2008 Miami International Boat Show, parked several tractor trailers on a lot owned by the city of Miami Beach under a temporary license and use agreement signed with the city's housing authority. On February 7, 2008, David Collins entered the lot, climbed under a parked trailer and fell asleep. A truck driver for the association, who didn't know anyone was under the trailer, hitched it to his truck and pulled out, running over and fatally injuring Collins.
Collins' mother, Constance Ryan, sued the trade group and the truck driver, alleging he was negligent in failing to "check around and under the tractor-trailer so as to avoid striking a pedestrian in the vicinity." However, a toxicology repo…

Passenger Safety Rules Likely to Change Due to Costa Concordia

The IMO has been looking at passenger safety at its latest sessions – and according to new rules on cruise ship safety to emerge from IMO MSC91, it seems that in light of the Costa Concordia, passenger safety drills must take place before or straight after the ship departs.

At its meeting last month, the IMO’s maritime safety committee approved draft amendments to chapter III of the Safety of Life at Sea (SOLAS) Convention to require newly embarked passengers to be put through muster immediately, instead of “within 24 hours” as the current regulations require for ships whose passengers will remain on board for more than 24 hours. If 24 hours is a long time in politics – it can be a lifetime in shipping – and when the Concordia grounded, it was clear that change was needed. The draft amendments will now be circulated for consideration, with a view to being adopted at the next session, MSC 92, in June 2013, and could enter into force at the end of 2014.
The preliminary investigation into …

Prior Opinions Precluding Arbitration of Seaman's Suits Continue

In ESTIBEIRO v. CARNIVAL CORPORATION, 23 Fla. L. Weekly Fed. D375a (S.D. Fla.Oct. 2, 2012) (J.Seitz), the Southern District of Florida has again found that an arbitration clause in a seaman's employment contract, which required that the arbitration of claims must be held in Bermuda, unless the Bermuda venue provision is found legally unenforceable, was valid and enforceable. A seaman had brought his Jones Act claims and claims for maintenance and cure against his cruise ship employer, alleging he sustained damage to his heart muscle as result of an alleged failure to administer medication in a timely manner after he suffered a heart attack while working on cruise ship. The plaintiff brought the case in federal court, alleging that the amendment to the Jones Act which deleted the statute's venue provision rendered the Bermuda forum selection clause unlawful and contrary to public policy. The district court disagreed and found that the arbitration clause was neither substantivel…

New EU Regulation Increases Liability Limits

As I addressed in my presentation at the Fort Lauderdale Mariners Club seminar on October 24, 2012, a new EU Regulation governing the carriage of passengers will come into force on 31 December 2012.Its provisions will impact on all yacht owners/operators established or operating in the EU and EEA that operate yachts certified to carry more than 12 passengers and where there is a contract of carriage in place with those passengers. The Regulation essentially gives effect to the key provisions of the Athens Convention Relating to the Carriage of Passengers and their Luggage by Sea, 1974 as amended by the 2002 Protocol, together with the 2006 IMO Reservation and Guidlijnes for implementation of the Convention covering war risks. The Regulation can be found here => Significant features of the new Regulation are: An increase in liability limits to 400,000 SDRs (approximately Euro 476,000 or USD 620,000 …

Insurer Wins Dec Judgment Action in 5th Circuit on Indemnity Provisions in Contract

In Ace American Ins. Co. v. M-I, L.L.C., Case No. 12-20080, (5th Cir. Oct. 19, 2012), the Fifth Circuit Court of Appeals affirmed the district court's grant of partial summary judgment on behalf of an insurer, finding that the Outer Continental Shelf Lands Act ("OCSLA"), 43 U.S.C. 1333(a), applied to the parties' contractual dispute. As a result, the court found that pursuant to the OCSLA choice of law provision, Louisiana law applied, under which the Louisiana Oilfield Indemnity Act ("LOIA"), La. Rev. Stat. 9:2780(B), invalidated the indemnity provisions.

The dispute concerned a Master Service Agreement ("MSA") between BP and a service company. Contained within the MSA was an indemnification provision, which contained an insurance agreement supporting the service company's indemnification obligations. An employee of the service company was injured, sued BP and the service company, BP tendered the employee's claims to the service company, w…

Speaking Engagement: Fort Lauderdale Boat Show 2012

I am speaking this Wednesday at the Fort Lauderdale Mariners Club seminar dubbed "the most important seminar for insurance agents, brokers, underwriters, surveyors, admiralty attorneys and marine industry professionals" in Fort Lauderdale, Florida on the the topic of The Rules of the Game from the Legal Perspective. This topic relates to the rules and regulations for passenger ships. The agenda for the conference can be found here =>

If you are interested in this topic and have never been to this seminar, it is a well-known conference held every year as a "kick-off" to the Fort Lauderdale Boat Show. If you have any questions regarding this seminar or are interested in receiving the outline for my presentation, please feel free to contact me at

Florida Mediation Rules Require Physical Presence of Full Decision Makers of Both an Insured Party and Its Insurance Representative

In order for a case to proceed to trial in Florida, mediation between the parties must be had. I am routinely asked whether a party is required to attend mediation in Florida or whether the mediation rule is permissive, meaning that a party can send a replacement or party representative to attend on the party's behalf. Of course, this is important in maritime cases where the parties can hail from all over the world and it seems to some outside of this jurisdiction to be onerous to have to physically attend mediation.
On January 1, 2012, Florida’s Rules of Civil Procedure regarding mediation required each party to file a notice 10 days before the mediation identifying who will physically attend on behalf of each party. Pursuant to amendments to Rule 1.720, an insured defendant must identify the party representative of the defendant and the insurance representative of the defendant who will physically attend the mediation. The amendments also require the defendant’s attorney to cer…

Insured Can Pursue Bad Faith After Favorable Appraisal Award

In Trafalgar at Greenacres, Ltd. v. Zurich American Insurance Company, No. 4D11-1376, 2012 WL 3822215, *1 (Fla. 4th DCA Sept. 5, 2012), the Florida Fourth District Court of Appeal, applying Florida law, overturned the trial court’s summary judgment order and held that an appraisal award pursuant to an insurance contract can constitute a “favorable resolution” of an underlying breach of contract dispute for purposes of filing a bad faith cause of action.

In this breach of contract case, a policyholder who suffered property damage from Hurricane Katrina alleged that the insurer failed to pay all proceeds due from the related claim.  In response, the insurer invoked the policy’s appraisal provision. An appraisal award was entered in the policyholder’s favor and the insurer paid it within the required time frame.

When the insurer moved for summary judgment on the breach of contract claim, the trial court granted the motion, but also granted the policyholder’s motion to amend …

Is a Houseboat a House or a Vessel?

The Daily Business Review lays out the story of Fane Lozman, the man who owned a houseboat, floating home or other item that floated off the Rivera Beach that the U.S. Supreme Court has now heard oral argument on. This case was debated during a recent meeting of the Florida Bar Admiralty and Maritime Law Committee on September 20th. As background as laid out by the DBR, Lozman made a boatload of money off the tech bubble and decided to live the good life on a houseboat at a Riviera Beach marina. The city, though, had a $2.4 million redevelopment plan for the public marina with its easy access to the ocean. Lozman stood in the city's way and was determined to fight the city's use of eminent domain. Riviera Beach turned to federal maritime law to evict Lozman after he succeeded in state court, arguing he was being retaliated against for speaking out against the redevelopment plan.
Now the former Chicago financial trader is a cause celebre for fellow houseboat residents around the …

2013 Officers of the Fort Lauderdale Mariners Club

I am pleased to announce that I have been elected Program Chair of the Fort Lauderdale Mariners Club for the upcoming year. The Fort Lauderdale Mariners Club Officers for 2013 are the following:

Skipper - Matt Valcourt
First Mate - Charles Davant
Purser - Kristene Lundblad
Yeoman - Bryan Emond
Program Chair – Michelle Otero Valdes
Bos’n – Elaine Frawley
Historian – Terry Jones
Activities Chair – Arlene Weicher
Seminar Chair - Jonathan Dunleavy

I am excited with this new position and will be looking to my colleagues in the maritime community to be ready to speak about matters of interest to the Club.

If you have any interesting topics to present, please feel free to contact me at

Cruise Line Has No Right To Demand Arbitration Without Signing Arbitration Agreement

In CAPPELLO v. CARNIVAL CORPORATION, 23 Fla. L. Weekly Fed. D317a (S.D. Fla. Aug. 10, 2012) (J. Altonaga), a crewmember and his wife filed a lawsuit in state court against Carnival Corporation (“Carnival”) alleging breach of warranty of seaworthiness, Jones Act negligence, failure to provide maintenance and cure, failure to provide prompt, proper and adequate maintenance and cure, common law negligence and loss of consortium. Carnival filed a Notice of Removal of the lawsuit attempting to compel the Plaintiff to arbitrate his claims against Carnival. The Plaintiffs in turn filed a Motion to Remand the case back to state court. The District Court found that it lacked federal question jurisdiction over the seaman's action under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Convention because Convention does not apply. The court found that Carnival had not met the jurisdictional prerequisites of the Convention by presenting a signed arbitration agreemen…

Eleventh Circuit Validates Forum-Selection Clause in Passenger Contract

In the case of the Estate of Tore Myhra v. Royal Caribbean Cruises, Ltd., Case No. 10-15840 (11th Cir. Sept. 21, 2011), the Plaintiff, the estate of Tore Myhra, brought suit against Royal Caribbean, seeking damages for Mr. Myhra's injuries and death. The Plaintiff alleged that a bacterial infection that the passenger had acquired while on board Royal Caribbean's vessel had caused the events which resulted in his death. The district court dismissed the Plaintiff's case, noting that forum-selection clauses are presumptively valid and the Plaintiff failed to make the strong showing required to void the presumptively valid forum-selection clause. On appeal, the estate contended that the forum-selection clause should be invalidated both because it was against the statutorily expressed public policy of the United States and because its terms were not reasonably communicated to the Myhras. The court concluded that 46 U.S.C. section 30509(a) did not prevent Royal Caribbean from inc…

Virginia Holds Decedent Seaman's Family Entitled to Pre-Death Pain and Suffering Under GML

In John Crane, Inc. v. Hardick, Record No. 101909 (Vir. Sept. 14, 2012), a decedent crewmember's wife and estate, filed suit under general maritime law against John Crane, Inc. (JCI) seeking compensatory and punitive damages, alleging that decedent, a former seaman, was exposed to asbestos contained in products manufactured by JCI and that he contracted mesothelioma as a result of such exposure. The Plaintiffs' third amended complaint included revived personal injury survival claims - which sought damages for Decedent's pre-death pain and suffering - and Plaintiffs' wrongful death claims. A jury awarded $2 million in damages for Decedent's pre-death pain and suffering. The Supreme Court vacated the award. The Plaintiffs petitioned for a rehearing, which the Court granted. The Court then reinstated the award and modified its opinion, holding that because the Jones Act permits recovery for the losses suffered during a decedent seaman's lifetime in a survival acti…

Seaman Entitled to Attorney's Fees Under Florida's Offer of Judgment Statute

In ROYAL CARIBBEAN CRUISES, LTD., v. COX, 37 Fla. L. Weekly D2029a (Fla. 3d DCA August 22, 2012), the Third District Court of appeals held that the trial court properly awarded injured seaman attorney's fees pursuant to Florida's offer of judgment statute in his action asserting claims against cruise line for Jones Act negligence, failure to treat, maintenance and cure, unearned wages, and unseaworthiness. Given the short length of the opinion, I have copied it in its entirety (less the footnotes).   QUOTE (LAGOA, J.) Royal Caribbean Cruises Ltd. (“RCCL”) appeals an order awarding seaman Byron Cox (“Cox”) attorney's fees pursuant to Florida's offer of judgment statute, section 768.79, Florida Statutes (1997), following a jury verdict in his favor in an admiralty case. We are compelled to affirm based on the authority of Royal Caribbean Corp. v. Modesto, 614 So. 2d 517 (Fla. 3d DCA 1992).
Cox filed the underlying action against RCCL after h…

North American Emissions Control Area Is Now Here

The North American Emissions Control Area ("NAECA") entered into force last August and included a one-year grace period to give the various enforcement agencies and the maritime community sufficient time to adapt to the new regulations. The grace period ended on August 1, 2012.

The NAECA covers nearly all coastal waters of the United States and Canada out to 200 nautical miles from their coasts. A chart of the area concerned is found below:

Photo taken from:

Within the ECA, ships and yachts of 400 gross tons and above are required to reduce harmful air emissions by adopting one of three approved alternatives:
1. Use fuel with a sulfur content that does not exceed 1.0 %;

2. Utilize an exhaust gas cleaning system approved by its flag administration in accordance with IMO guidelines; or

3. Adopt any other technological method that is verifiable, enforceable, and has been approved by its flag administration…

Bank Loses Its First Preferred Ship Mortgage Status

In the case of BRANCH BANKING & TRUST CO. of VIRGINIA v. M/Y "BEOWULF," 23 Fla. L. Weekly Fed. D285a (S.D. Fla.  June 7, 2012) (Hurley, J.), a bank filed an in rem admiralty action to foreclose a first preferred ship mortgage claimed by mortgagee bank on defendant vessel, which was assigned second identification number after execution of mortgage, documented under different name, and sold to third-party purchaser for value, all without notice to bank. The third-party purchaser for value claims competing ownership interest in defendant vessel as subsequent innocent purchaser for value. The court found that the mortgagee bank is not entitled to preferred ship mortgage status under Ship Mortgage Act because the mortgage was invalid to create a security interest in defendant vessel where mortgagor did not hold good and valid legal title to vessel on day he executed the mortgage. The court reasoned that only a valid mortgage is eligible for preferred status under Ship Mortga…

Speaking Engagement: Jones Act and 905(b) Claims

I am speaking next week at the 67th Annual Workers' Compensation Educational Conference in Orlando, Florida on the the topic of Jones Act Claims, 905(b) and Other Marine Injury Claims: Defenses and Damages. The partial agenda of the conference (as there are numerous breakouts) can be found here =>

If you are interested in this topic and have never been to this conference, it is a huge conference that provides lawyers, insurance adjusters, underwriters, medical providers and planners opportunities to collect the continuing education they require.

If you have any questions regarding this conference or are interested in receiving the outline for this presentation, please feel free to contact me at or

4th DCA Doesn't Allow Production of Records in Fee Request

The Daily Business Review reports recently that the Fourth District Court of Appeal granted a petition on August 14, 2012 to stop discovery of the billing records of a losing attorney who defended a driver in an auto accident case. Steven Dyda, who was injured, sued Balande Estilien and won at trial. Dyda then asked Palm Beach Circuit Judge Lucy Chernow Brown to require Estilien's attorney to produce all billing records in the case.
Estilien objected on relevance grounds, but Chernow Brown allowed limited discovery with an exception for privileged information. Dyda's attorney said the information was needed to reconstruct the time he spent on the case because he didn't keep time records on the contingency case.
The 4th DCA has issued a reminder that a trial court’s discretion to allow discovery of an attorney’s billing records is not unfettered. The Court held that the requesting attorney must show relevancy, need and undue hardship to find the information elsewhere. This …

Florida Gives Port Canaveral $24.4 Million to Complete Harbor Improvements

The Maritime Executive reports today that Port Canaveral will get $24.4 million in state funding to complete its harbor widening and deepening project to accommodate larger cruise and cargo ships. The money from the Florida Department of Transportation ("FDOT") will allow the project to be completed four years earlier than possible through the federal process.

During his recent visit to Port Canaveral, Florida Governor Rick Scott emphasized the importance of Florida’s seaports for increasing the state’s international competitiveness and for generating high-paying jobs. A FDOT study shows every $1 invested in seaports generates $7 to the state’s economy. The channel improvement project is expected to yield $11 for every dollar invested.

With this remarkable news, Port Canaveral should rethink its current practice of charging cruise passengers $20 a day to park in a spacious port terminal. For a cruise passenger taking a one-week cruise out of Port Canaveral, that is a parking…

Insurer's Duty to Defend Under Injury-In-Fact Theory

In the case of AXIS SURPLUS INSURANCE COMPANY v. CONTRAVEST CONSTRUCTION COMPANY, et al, 23 Fla. L. Weekly Fed. D279a (M.D. Fla. June 5, 2012) (Antoon, J.), the court found that in a declaratory judgment action filed by an insurance company, a commercial general liability insurer has a duty to defend insureds in an underlying suit for allegedly negligent construction and development of individual dwelling units and common areas of condominium community where property damage occurred during policy period.

The court reasoned that under injury-in-fact theory which provides that damage “occurs” at the moment that there is actual damage and date of discovery is irrelevant, the insurer has duty to defend where underlying complaint suggests that “property damage” at issue occurred at some point after buildings were completed but before discovery by expert inspections, which includes the time that the policies were in effect. The court also found that even under the insurer's strict inter…

$950k Wrongful Death Settlement for Small Boat Accident

The Daily Business Review reports today on the case of Smith v. Romeu, Case no: 50-2011CA006736XXXXMB before Palm Beach Circuit Judge Lucy Chernow Brown, wherein the parties settled the case of a wrongful death on the eve of trial for $948,000.00.

The facts of the case are as follows: Romeu met Smith and his sister on the night of May 8, 2010 Beach. Romeu had recently bought a 34-foot speedboat and invited the Smiths aboard for a ride. Romeu gunned the boat and accidentally struck a navigational marker in the Intracoastal Waterway. At the last moment, Romeu made a sharp turn in a failed attempt to avoid the marker. The lurch of the boat threw Smith from the boat, impaling him through the torso on the marker and sinking him to the bottom. A fire and rescue diver retrieved the body about an hour later.
Smith's father filed the civil lawsuit on behalf of his son's estate, with himself and his wife as the estate's claimants. The son was 31 when he died and left no children.
The d…

Southern District Addresses Valuation in Policy

In SUMMIT TOWERS CONDOMINIUM ASSOCIATION, INC., v. QBE INSURANCE CORPORATION, 23 Fla. L. Weekly Fed. D265a (S.D. Fla. May 29, 2012)(Seitz, D.J.), the court found that where one section of policy provides for the insured to receive “actual cash value” for a loss and another section provides for “replacement cost,” the section providing for replacement cost provides that, “[i]f shown as applicable in the Declarations, the following Optional Coverages apply separately to each item,” and the Declarations page identifies the “Value Option” as “RC,” replacement cost is the value option in force under the policy.
Given the shortness of the opinion, the entire opinion is provided below:

THIS MATTER is before the Court following the Court's Order [DE-153] denying Defendant QBE Insurance Corporation's Motion for Partial Summary Judgment [DE-69]. During the pretrial conference, the parties and the Court identifie…