Jonathan H. Dunleavy (Partner-Miami) and Katherine E. Kaplan (Associate-Miami) secured a defense verdict in Miami-Dade County Circuit Court, Florida, with the jury finding no liability on the part of Wilson Elser’s clients in a maritime case involving a fatality. The plaintiff brought this action on behalf of the estate of a decedent, who was a passenger on a jet ski (PWC) and was killed in a collision with a 46-foot Scarab vessel owned by our clients and operated by their employed captain through the clients’ yacht company.

The court entered default judgment against several co-defendants – including the PWC operator, the PWC rental company, the rental company’s owner, and related yacht entities – finding their negligence to be a legal cause of the decedent’s injuries and death.

The plaintiff nonetheless pursued claims against our clients, the Scarab’s captain, its owners, and their yacht company, alleging that the captain negligently operated the vessel by failing to maintain a proper lookout, operate at a safe speed, avoid the collision, yield to the PWC, and render aid. The plaintiff further alleged that the vessel owner contributed to the collision through modifications to the vessel, and that the yacht company was vicariously liable for the captain’s conduct.

On behalf of our clients, Jonathan and Katherine disputed liability, maintaining that the captain acted reasonably under the circumstances and that any competent boater would have taken his actions; the yacht company was not vicariously liable, and the owner’s actions did not cause or contribute to the collision. They further asserted that the negligence of the parties in default and, in part, the decedent caused the incident. Framing the case through a “red light/green light” theme, Jonathan and Katherine emphasized that under navigation rules, the PWC was the give way vessel and should have altered course, i.e., had the red light. The Scarab was the stand on vessel with the green light and had the right of way.

Miami partners Russell M. Pfeifer and Gustavo A. Martinez Tristani, and associate Jackson G. Adams, secured dismissal of a personal injury action on the eve of trial in the U.S. District Court for the Southern District of Florida through a successful Rule 12(b)(6) motion to dismiss on behalf of Wilson Elser’s client, a shoreside services provider. The plaintiff alleged that she sustained injuries inside a cruise terminal during the disembarkation process and asserted maritime claims against the cruise ship owner, the terminal owner, and our client. She later settled her claims against the cruise ship and terminal owners. After extensive discovery and prolonged motion practice, Russell, Gus, and Jack persuaded the District Court that it lacked subject matter jurisdiction to adjudicate the remaining claims against our client. Specifically, the team argued that admiralty jurisdiction did not exist because the alleged incident, a slip and fall in a small puddle of water, occurred on land, involved a fixed terminal structure, and did not involve a vessel operator. In addition, the activity giving rise to the incident – the alleged failure to maintain the terminal and/or place warning signs – bore no substantial connection to traditional maritime activity. The decision marks a significant defense victory and establishes an important and new precedent curbing the expansion of admiralty jurisdiction. 

Miami partners Russell M. Pfeifer and Gustavo A. Martinez Tristani and associate Jackson G. Adams secured dismissal of a maritime personal injury lawsuit filed in the U.S. District Court for the Southern District of Florida. The plaintiff, a Canadian citizen, filed a lawsuit seeking damages against a major cruise liner and its independent contractor, our client, for injuries sustained during an offshore excursion at the Krka National Park in Croatia. Despite the federal court having admiralty jurisdiction to adjudicate the claim against the cruise liner, Russell, Gus, and Jack persuaded the District Court that it lacked both diversity jurisdiction and admiralty jurisdiction to entertain the claims against their client, securing the complete dismissal of the action on those grounds on the eve of trial. The victory and corresponding 15-page order constitute an impactful precedent as it distinguishes the factual pattern in this case from a long line of cases decided by federal courts in Florida that routinely exercised admiralty jurisdiction in cases of similar nature against cruise lines and their shore excursion operators.    

Otis Felder (Partner-Los Angeles, CA) and Jonathan Patillo (Associate-Las Vegas, NV) obtained a favorable ruling from the United States District Court for the District of Nevada, which denied a motion for sanctions against our client jet ski rental company in a wrongful death lawsuit. The plaintiffs had sought spoliation sanctions, alleging that the rental company failed to preserve video footage related to a 2020 jet ski rental transaction. Wilson Elser was brought in after the original counsel failed to bring a limitation action in federal court. The court ruled in favor of the rental company, finding that the plaintiffs failed to establish a duty to preserve the footage at the time it was automatically deleted. Through their representation, Otis and Jonathan were able to show the court that the company acted properly and in good faith throughout this process. The denial of sanctions eliminates any adverse inference against the company and strengthens its defense as the case proceeds. The case also is significant in discussing the various standards with respect to preservation of evidence and issues concerning spoilation.

Otis Felder (Partner-Los Angeles, CA) and Vladyslava Turner (Associate-Los Angeles, CA) obtained dismissals of prominent Canadian clients based on key issues concerning lack of personal jurisdiction and proper service under Hague Convention. 

• In the first case., the U.S. District Court for the Central District of California granted a motion to dismiss against a Canadian ground handler, determining that the company lacked sufficient ties to California to justify personal jurisdiction. The plaintiff alleged that an employee of the ground handler contractor caused her injury at the Vancouver Port, but the court found that it was not bound by the forum selection clause in the cruise line’s passenger contracts. In addition, the plaintiff had failed to show she complied with properly serving the Canadian entity as required by the Hague Service Convention.
   
• In the second case, the Los Angeles Superior Court granted a motion to quash service of summons as to two Canadian entities allegedly involved in sponsoring a virtual reality event where the plaintiff says he lost his balance and fell. The court ruled that the service of summons on these defendants in Canada failed to comply with the Hague Service Convention, rendering it invalid.

These rulings highlight the complexity of jurisdictional challenges in cross-border litigation and the necessity of adhering to proper legal procedures when attempting to bring Canadian defendants into U.S. courts.

Otis Felder (Partner-San Diego) prevailed in the U.S. District Court for the Southern District of California for Wilson Elser’s shipping and trading company client. In this admiralty and marine matter, the court vacated an arrest warrant against the subject vessel and dismissed the associated in rem proceedings. The plaintiff in this case, a Dubai fuel supplier, alleged non-payment by our client for fuel supplied to the subject vessel, filing a verified complaint in rem against the vessel and obtaining an arrest warrant for it. Wilson Elser established that the fuel order was placed with another entity and, as such, the plaintiff was not entitled to a maritime lien – a requirement for the arrest. The plaintiff also failed to meet the three elements required under the Commercial Instruments and Maritime Liens Act (CIMLA). In addition, Otis submitted evidence that the plaintiff was paid in full but misapplied the amount to another account. The court concurred and found that the plaintiff failed to state a claim, dismissing the complaint without leave, vacating the arrest warrant, and consequently dismissing the in rem proceedings.

Otis Felder (Partner-San Francisco) convinced the San Joaquin Superior Court in Stockton, California, to grant a motion in limine stating the effect of which “guts the case of its damages demand.” In this state court case, the plaintiff alleged that his recreational speed boat was negligently repaired by our client boat repair shop, demanding he was entitled to $1,500 per diem for 1,090 days of loss of use, amounting to $1,635,000. In response, the repair shop moved to exclude the damages based on a U.S. Supreme Court case, The Conqueror, 166 U.S. 110 (1897), which held that owners of recreational vessels intended for and used strictly for pleasure have no pecuniary loss arising from delay in repairs. The Stockton court pointed out that the plaintiff’s boat was registered for recreational use only and that the plaintiff had never rented or chartered another during the repairs. The court agreed that general maritime law, not California state law, controlled and that the Supreme Court’s decision applied. In The Conqueror, Frederick Vanderbilt, grandson of Commodore Cornelius Vanderbilt, had sued to recover possession of his steam yacht that he alleged was illegally detained for failing to pay customs fees when he brought it to the United States from England. The U.S. Supreme Court held Vanderbilt’s claim for loss of use failed because he had no evidence of loss of profits and that the vessel was intended and was used only for personal pleasure. The state court noted that to the extent California law would allow loss of use damages, it would interfere with established federal maritime law and thus was preempted. It found that the plaintiff was precisely in the same position as Vanderbilt in 1897, as both boats were owned and used for personal pleasure only and not intended nor used commercially. Accordingly, it granted that no claims or references could be made at trial to loss of enjoyment or use of the recreational boat.

Otis Felder (Partner-Los Angeles, CA) in Live Life Bella Vita, LLC v. Cruising Yachts, Inc., defended claims against a yacht broker where the Ninth Circuit Court of Appeals has made a significant ruling. As background, a prominent personal injury plaintiff counsel hired a diver to inspect his new yacht’s bow thruster. However, a crew member's action led to an unfortunate accident, causing injuries to the diver’s hands. A complex legal battle ensued, with the plaintiff counsel (as owner) initiating a proceeding under the Limitation of Liability Act (LOLA) in the U.S. District Court for the Central District of California in Los Angeles. Subsequently, the diver filed a complaint in Los Angeles Superior Court and also made claims in the LOLA proceedings. The parties filed claims against others, including the yacht broker, for contribution and indemnity. The legal dispute intensified when the diver sought to stay the LOLA proceedings, claiming to be a "single claimant," a legal exception to proceeding in federal court. The district court agreed with the diver, but the vessel owner appealed. In a significant turn of events, the Ninth Circuit reversed the district court's ruling, stating that claims by others should be counted in assessing the single-claimant exception. This decision aligns with the approach of most other circuit courts considering similar issues. The ruling is crucial as it limits the single-claimant exception, allowing the federal court to address and resolve all claims in a comprehensive manner.  Ninth Circuit Chief Judge Mary H. Murgui wrote the opinion holding that claimants seeking contribution or indemnification are additional claimants rendering inapplicable the single-claimant exception under LOLA.

Otis Felder (Partner-Los Angeles, CA) and Vladyslava Turner (Associate-Los Angeles, CA) secured summary judgment and exoneration for a jet ski rental company before the U.S. District Court for the Southern District of California in San Diego. This significant victory stems from a wrongful death, survival and personal injury case resulting from an allision involving a rental jet ski operator and another jet ski, ultimately leading to the death one of the operators. In this case, the rental company initiated proceedings in federal court, seeking either exoneration or limitation of its liability to the value of the jet ski. Notably, the court ruled that as the case fell under its admiralty jurisdiction, federal general maritime law governed, and California state law could not supplement the issue of whether the renters had a contractual duty to defend the rental company. The court's decision highlighted that under admiralty law, the claimants failed to provide evidence supporting a claim for negligent entrustment, demonstrating that the rental company knew or should have known that one of the renters would recklessly use the rented jet ski contrary to their experience. The ruling also emphasized that the rental company was not required to warn of the evident dangers of operating a jet ski. Additionally, the court deemed the renters' intentional actions as a superseding cause, as their reckless operation, violation of navigation rules and terms of the rental agreement were unforeseeable as a matter of law. While the court exonerated the rental company from liability, it acknowledged that there were existing factual issues regarding whether the company would be entitled to indemnification for its defense expenses.

Otis Felder (Partner-Los Angeles, CA), representing a nonprofit association of marina owners and operators as Amicus Curiae before the Ninth Circuit Court of Appeals, assisted in obtaining a ruling overturning a prohibition against vessel owners' use of liability waivers in Hawai'i. The case arose from the plaintiff's wife's presumed death during a scuba and snorkeling tour off the coast of Maui, Hawai'i. Before the tour, the plaintiff and his wife signed a waiver releasing the vessel owner and operator from liability during the excursion. The federal district court in Honolulu struck the waiver as a defense by the vessel owners as to claims based on negligence as being void under section 30527(a) of Title 46, which prohibits certain liability waivers by owners regarding "vessel[s] transporting passengers between ports in the United States, or between a port in the United States and a port in a foreign country." In a 49-page opinion, the Ninth Circuit overruled the district court in deciding that vessel owners may use liability waivers, including in matters arising from a wrongful death admiralty action in Hawai'i. After finding it had appellate jurisdiction because the district court's order determined the rights and liabilities of parties in an admiralty proceeding, the Ninth Circuit held that the plain meaning of section 30527(a) does not apply to liability waivers as to vessels that transport passengers away from and back to a single port without stopping at any other port. The decision is highly significant to members of our client's association in permitting liability waivers, cruise lines and other marine operators around the country where their vessel leaves and returns to the same port.

Otis Felder (Partner-San Francisco, CA) prevailed in representing a jet ski rental company before the U.S. Court of Appeals for the Ninth Circuit, which affirmed the U.S. District Court for the Eastern District of California in Sacramento was correct in resuming its exclusive admiralty jurisdiction with respect to negligent entrustment claims made by the mother of a rider who drowned. In this case, after the rental company, which owned the jet ski, initiated the federal limitation proceedings, the district court, pursuant to Admiralty Rule F, enjoined all other lawsuits arising from the accident. Initially, only the decedent's mother filed a claim in the limitation proceedings. She also filed a wrongful death lawsuit against the renters in California state court and asked the district court for permission to also proceed against the rental company. Initially, the district court lifted the stay but when the rental company was added to the state court action, the renters filed cross-complaints, which the district court then enjoined because it would interfere with its exclusive jurisdiction to determine the potential liability of the rental company. On appeal, the Ninth Circuit held, in general, that a district court has broad discretion to dissolve and reinstate its injunction issued under Rule F and the Limitation of Liability Act (LOLA), but it must allow the mother to proceed in state court against other defendants who are not entitled to protection under the LOLA. It found that the federal Anti-Injunction Act, which prohibits a federal court from staying state court proceedings, except as authorized by Congress or where necessary to aid or protect its jurisdiction, prohibited the district court from enjoining the decedent's mother from proceeding against anyone other than the vessel owner, which is protected by the LOLA. In addition, the renters did not seek protection of the LOLA as charterers, to which the LOLA also applied, and did not participate in the appeal.

Otis Felder (Partner-San Francisco) secured exoneration and the dismissal of all claims in the United States District Court for the Eastern District of California, Sacramento, for Wilson Elser’s client, a sports equipment rental company. The plaintiff was injured while attempting to board an inboard ski boat after tubing when her future relative engaged the throttle, resulting in a severe foot injury for which the doctors recommended amputation. The vessel was owned and rented out by our client’s company.

Otis petitioned the federal court to limit our client’s liability to the value of the vessel or for exoneration from liability. The plaintiff, her daughter, her fiancé who rented the boat, and his daughter filed claims in the federal LOLA proceedings and claimed damages in a companion state court filing, which the federal court stayed. Otis pursued enforcement of the indemnity provisions in the rental contract against the renter, including the express duty by the renter to defend. The federal court approved the dismissal of all the claims and issued an order exonerating the rental company. The state court claims were also dismissed, with Wilson Elser’s client avoiding a last demand of $20 million.
 

Otis Felder (Partner-Los Angeles | San Diego) and Valeria Granata (Of Counsel-Los Angeles) defended a golf course management company against allegations it was negligent as well as strictly liable for trespass and nuisance in allowing water, silt and soil to cause a flood on the plaintiffs’ property. The state court granted the plaintiffs trial preference based on their advanced age but sustained a demurrer on the basis that they failed to make a proper showing of a "taking" required as part of an elder abuse claim that would have entitled them to recovery of attorney fees. While the San Diego Superior Court found that the plaintiffs were correct that the right to use their property is contained in the "bundle" of property rights that can be taken, they did not allege the existence of a taking. The court also struck allegations against the property owner as to the same causes of action and found that they had improperly tried to add them as defendants without seeking leave to amend. Upon the court finding plaintiffs could not recover attorney fees under the elder abuse statute, the case was resolved.