Throughout Joe Biden’s campaign, he made clear that climate change, the environment, and “Clean Energy” were going to be anchors of his Presidential platform. What was less clear was how his administration would treat oil and gas beyond the expected counterbalance to the Trump Administration’s regulatory rollbacks – especially with respect to GHG emissions. On
Tod Everage
Coast Guard Proposes to Clean up Environmental Regulations Governing Tankers
On May 13, 2020, the USCG published a Notice of Proposed Rulemaking advising of its intent to amend and update the regulations governing financial responsibility for environmental pollution under OPA 90 and CERCLA. Triggering these changes include a desire to close compliance gaps that cause untimely responses to oil spills due to operators failings to…
Update: Supreme Court Rejects Punitive Damages for Unseaworthiness Claims
Today, the U.S. Supreme Court resolved a Circuit Split, holding that punitive damages are not recoverable to a seaman under an unseaworthiness claim. The Court, in a 6-3 ruling, sided with the U.S. Fifth Circuit’s analysis under McBride and reversed the U.S. Ninth Circuit’s decision in Dutra v. Batterton. The Court followed Townsend,…
UPDATE: Supreme Court grants writs in Dutra v. Batterton
Last week, the U.S. Supreme Court granted the Writ of Certiorari in the Dutra v. Batterton case, setting the stage for a resolution of the Circuit Split between the US Fifth and Ninth Circuits on whether punitive damages are available to a seaman on an unseaworthiness claim. A more thorough review of the Dutra case…
Be Careful How You Word Your Contracts and Complaints: 5th Circuit Silences “Prevailing Party” Fee Provision in JOA Dispute
The modern day contract is a direct result of trial and error. Generally speaking, transactional lawyers try to negotiate “bulletproof” contracts providing exactly what their client wants or needs. Despite their best efforts, litigators in later disputes try their level best to find the “errors” in those contracts that could benefit their client. Then the…
U.S. Fifth Circuit’s New Doiron Test Finds P&A Contract to be Maritime, but What if the Work Occurred on the OCS?
Contractual indemnities are important and valuable in the oil patch. When they are enforceable, they have the potential to end litigation completely or at least the financial burden for a particularly well-positioned indemnitee. But, with “anti-indemnity” statutes in play in several jurisdictions (including Louisiana), the enforceability of these indemnity provisions rely (barring exceptions) on the…
“Zone of Danger” Rule Applies to Emotionally Injured Passengers Under General Maritime Law within U.S. 1st Circuit; U.S. 5th Circuit Still Undecided
On February 12, 2017, a fishing charter boat, the M/V SUPER STRIKE, carrying several paying customers collided with an offshore service boat, the M/V MISS IDA, during a fishing trip. Claims were asserted by the passengers against both vessels and operators in their respective limitation suits. Recently, dispositive motions were filed against the claims asserted…
U.S. 5th Circuit Addresses McCorpen, Unseaworthiness, and OSHA Preemption in Recent Case
Recently, the US Fifth Circuit addressed three maritime tenets in the same case: McCorpen defense, unseaworthiness, and regulatory governance. While these issues can be rather straightforward in the typical case, the facts in Thomas v. Hercules Offshore Services, LLC (5th Cir. March 2, 2018) provided an interesting review of each. The specific issues addressed in…
Out with Davis & Sons and in with Doiron: The 5th Circuit Simplifies Maritime Contract Test
For nearly 30 years, district courts within the US 5th Circuit have evaluated whether maritime or state law applies to oil and gas service contracts using the 6-factor test from Davis & Sons, Inc. v. Gulf Oil Corp., 919 F.2d 313 (5th Cir. 1990). The Davis factors focused mainly on the nature of the…
On First Impression, U.S. 5th Circuit Recognizes its Jurisdiction to Review Summary Judgment Denials on Legal Issues Even After a Jury Trial
The US Fifth Circuit recently published an opinion in Feld Motor Sports, Inc. v. Traxxas, LP, recognizing that it had jurisdiction to review a district court’s denial of a motion for summary judgment on a legal issue. This ruling was the first of its kind in the 5th Circuit, who now joins the 1st,…