On June 30, in a unanimous opinion, the Fifth Circuit affirmed most parts of a district court victory on behalf of Hornbeck Offshore Services against the former R&R Marine shipyard in Port Arthur, Texas, and its liability insurer. This will result in a $1.2 million judgment, plus interest, in Hornbeck’s favor. The judgment includes both prejudgment interest and attorneys’ fees. The case arose when Hornbeck’s tug ERIE SERVICE was undergoing major repairs in September 2007 at R&R’s dock . The ship repair facility negligently took insufficient steps to protect the vessel from water ingress from a quickly developing tropical storm. Heavy rain and wave action on Sabine Lake caused the unprotected tug to fill with water and sink.

R&R and its liability insurer refused to pay for the tug’s salvage or for any damages, and the insurer began a declaratory judgment action in Houston to avoid coverage.

In its twenty-page opinion, the Fifth Circuit affirmed the district court’s conclusion that R&R had full custody of the ERIE SERVICE while at its shipyard, but failed to exercise due care and was negligent. The court also affirmed R&R’s liability for all of the time-and-materials salvage charges, noting that even if the salvage company had damaged the tug while trying to raise it, R&R would remain liable because that damage would have been a foreseeable consequence of R&R’s negligence.

Although Texas is not a direct action state, the Fifth Circuit upheld the judgment against R&R’s liability insurer because it had subjected itself to Hornbeck’s compulsory counterclaim by commencing its declaratory judgment action. The Fifth Circuit reduced the judgment to the $1 million policy limit, but rejected the insurer’s argument that the policy limits should be further reduced by the attorneys’ fees it had incurred defending itself. The court reversed the district court’s 18% penalty interest award, but allowed Hornbeck prejudgment interest at 6%, and affirmed a substantial attorneys’ fees award in Hornbeck’s favor.

Stacey Norstrud (Houston) and Skipper Chenault (New Orleans) tried the liability phase of the case, with Tim Strickland (Houston) assisting Norstrud in the damages portion. After opponents appealed the district court’s judgment, Norstrud, Mike Harowski (New Orleans), Toney Rodriguez (New Orleans) and Chenault prepared Hornbeck’s brief, and Chenault argued before the Fifth Circuit. New Orleans paralegal Rachel Ricca was a great help throughout.

National Liability & Fire Insurance v. R & R Marine, No. 10-20767 (5th Cir., June 30, 2014).

New Orleans attorneys A.T. Chenault, Philip Brickman and Susan Keller-Garcia recently prevailed on behalf of Apex Oil Company and Trinidad Corporation on an exception of discharge in bankruptcy on behalf of a vessel owner in a Jones Act suit in the 19th Judicial District Court for East Baton Rouge Parish. The plaintiff alleged that he developed mesothelioma as a result of asbestos exposure on the clients’ vessel in 1966.

Fowler Rodriguez successfully argued that the plaintiff’s claims were discharged by the confirmation of the owner’s Chapter 11 reorganization plan by a Missouri bankruptcy court in 1990. The court’s ruling in the client’s favor directly resulted in a very favorable settlement of the plaintiff’s claims that was well below the plaintiff’s earlier demands.

Houston Mall Defended
Michael W. McCoy, with Allison Hooker, Sherry Weaver, and others, stepped in to defend well-known West Oaks Mall, essentially on the eve of trial. The case involved a personal injury lawsuit as a result of a certified air conditioning/heating specialist being shocked, blown off a ladder, and allegedly and severely injured as a result, while working on the A/C system on behalf of a tenant at West Oaks Mall. The case involved serious factual and legal issues, and resulted in difficult and protracted settlement negotiations after the filing of outstanding defense motions. One day before the final pre-trial conference, and only a few days before the actual trial, a settlement was achieved for less than the total medical lien, and much less than the total medical incurred by the Plaintiff.

Premise Liability Resolved in Favor of Houston Night Club
Very recently, McCoy and his team, including Allison Hooker, were successful in resolving a premises liability case which took place at a well-known nightclub in Houston. McCoy represented the owner of the club, but not the operator. McCoy was successful in demonstrating through documents and through a comprehensive Motion for Summary Judgment that the owner owed few, if any, duties to the particular patron who was severely injured by a bouncer, employed by the club operator, while escorting the Plaintiff out of the club.In fact, the bouncer was charged and pled guilty to felonious assault. However, through outstanding defense motions, it was shown from both a factual and legal standpoint that the owner had little or no liability, and the case settled at mediation for essentially nuisance value, despite a contention of mid-five figures in medical costs, and a prior demand for the $1,000,000.00 policy limit.

Property Damage Case Dismissed
A few weeks later, McCoy was successful in persuading Plaintiff’s counsel to dismiss a lawsuit against an insurance agent, who had placed a trucking policy that did not provide for property damage insurance coverage on behalf of the cab/tractor/trailer rigs, if such tractor/trailers were individually owned by the driver for the trucking company. A particular driver who had her truck stolen had sued, contending that the agent had allegedly misrepresented such coverages. McCoy and his team, including Allison Hooker, were successful through discovery in demonstrating that the Plaintiff driver had no privity with the agent, and that she could not have properly relied on any alleged misrepresentations by the agent, which would have thus, entitled the agent to summary judgment and possible attorney’s fees. McCoy was successful in getting the case dismissed without incurring large defense costs.

In 2004, approximately 824 plaintiffs filed suit in 23 multi-party actions in Mississippi alleging that they had been exposed to asbestos in drilling mud. The lawsuits were aimed primarily at the manufacturers of the asbestos products, including Conoco/Phillips and Union Carbide, as well as many distributors located throughout Mississippi and the Gulf states. Many offshore drilling companies were also named as defendants. Some of these cases were transferred to the multi-district litigation in Pennsylvania, but the vast majority of them settled into two jurisdictions in State Court in Mississippi. ENSCO Offshore Company was named a party defendant in 62 of the 700 cases.

In February 2013, over eight years later, those 62 cases were transferred to Delos Flint and the Fowler Rodriguez Gulfport office. Working with Todd Crawford, Chris Schmidt and Skip Negrotto, Flint was able to evaluate the cases. He settled one that was scheduled for trial immediately and quickly secured dismissals of three others. The Gulfport team then analyzed the medical data and Flint and Crawford came up with a plan to prioritize the claims and began taking the necessary steps to defend them and put them in a posture for Summary Judgment or trial.

In late December 2013, Dee Flint and Todd Crawford traveled to Houston, Texas to meet with plaintiffs’ counsel and reached an agreement to settle the remaining 58 cases on favorable terms. The client, ENSCO Offshore Company, was pleased to get 62 cases that had been pending for nearly ten years resolved and off of their books in less than one year after the cases were transferred to Fowler Rodriguez for handling.

Miami partner, Juan E. Serralles, Esq., recently negotiated franchise and licensing deals for two new South Florida hotels to operate under known hotel brands. Mr. Serralles has long represented South American hotel developers and operators who are focused on penetrating South Florida’s market. The most recent deals have involved negotiating two separate license/franchise deals for “mixed use” deals concerning his client, involving projects with a combination of hotel rooms, condominium units and retail facilities within the respective projects.

Mr. Serralles finalized license agreements with Holiday Hospitality Franchising, LLC, granting permissions for his client to operate a 140-room “Indigo Hotel” in the existing vibrant Brickell West area in Miami’s financial district. The other deal concerning the Sheraton, LLC, also known as ‘Starwood Hotels,’ involved finalizing a license agreement to allow Mr. Serralles’ client to operate an “Aloft Hotel” in the City of Coral Gables downtown area, which will culminate in the construction of a $32 million, 160-room hotel project. Both hotels have commenced construction.

Jon W. Wise recently concluded a lengthy trial in the 31st Judicial District Court for the Parish of Jefferson Davis, which resulted in a zero verdict in favor of the firm’s clients. The case was brought against clients Crimson Exploration, Inc., Anadarko Petroleum, Kerr-McGee and several other oil and gas companies on behalf of a group of landowners who were mineral royalty interest owners within producing units drained by two wells drilled in 1999. Seeking $16 million in damages, the plaintiffs claimed they were deprived of royalty revenue from these units due to the fact that the reservoirs were allegedly “destroyed” by the completion and/or workover of the wells by the operator defendants. Specifically, the plaintiffs alleged that improper cementing practices and well designs had permitted the incursion of extraneous water from nearby formations into the producing formations via the well bore and caused the producing formations to water out prematurely. This was an unprecedented claim, as there had been no prior cases where a court in Louisiana had awarded this type of damage principally because of the problems of proving the existence of damages.

The trial took over ten months to be completed in 2012 and was tried by a single judge. The opinion, which the trial court issued in May 2013, resulted in a finding of no liability on the part of the defendants. The case likely will be appealed, but the opinion of the court represents a major victory for oil and gas operators throughout the state.

The Gulfport trial and appellate team of John A. Scialdone, Todd G. Crawford and John S. Garner successfully navigated the troubled waters of maritime presumptions through the United States District Court for the Eastern District of Louisiana and United States Court of Appeals for the Fifth Circuit. In Mike Hooks Dredging Co. v. Marquette Transportation Co. Gulf-Inland, 716 F.3d 886 (5th Cir. 2013), the Fifth Circuit affirmed the district court’s apportionment of fault of 70% to plaintiff Mike Hooks Dredging Co. as operator of the dredge MIKE HOOKS; 15% to third party defendant Vizier, as operator of a picket boat required to physically assist passing navigation by the dredge under a Corps of Engineers contract; and the remaining 15% fault to Fowler Rodriguez’s client Marquette, as the operator of the PAT MCDANIEL, a tug that allided with the stationary dredge at the intersection of the Intracoastal Waterway near the Wax Lake Outlet in South Central Louisiana.

Mike Hooks claimed our client, Marquette’s, tug boat was solely at fault for striking its moored dredge, relying on the presumption of fault under the Oregon rule that when a moving vessel collides with a stationary object in the water, the moving vessel is presumed at fault and must prove it is not at fault. As the Gulfport trial team developed further evidence through discovery, however, other general maritime law presumptions began to swing in Marquette’s favor. For example, the dredge was required to provide a picket boat to comply with its dredging contract with the U.S. Corps of Engineers. Fowler Rodriguez also uncovered statements taken from Hooks’ employees that showed key dredge personnel knew the picket boat, operated by Vizier, refused to assist “passing vessels in navigation” as expressly required by the Corps contract. Nonetheless, the dredge proceeded to a dangerous location in the Intracoastal Waterway where currents intersect and create difficulty in navigation. Gulfport attorneys presented evidence of two near misses by vessels attempting to pass the dredge: a grounding caused by the heavy current that set the vessel to the southern bank of the intersection, and another collision with the dredge only a few hours before Marquette’s tug attempted to pass.

Fowler Rodriguez successfully rebutted the presumption against Marquette under the Oregon rule by arguing that the dredge violated the narrow channel rule, Inland Rule 9 (“INR9”), codified at 33 CFR § 83.09, which provides: “Avoidance of anchoring in narrow channels: Every vessel shall, if the circumstances of the case permit, avoid anchoring in a narrow channel.” The district court found Marquette had presented sufficient evidence to overcome the adverse presumption of the Oregon rule, agreed that Hooks violated the narrow channel rule and ultimately held that Hooks could not rebut the presumption triggered by the rule of the Pennsylvania, 86 U.S. (19 Wall) 125, 22 L.Ed. 148 (1874), which requires the offending vessel to show the statutory rule violation was “not merely her fault and might not have been one of the causes, or that it probably was not, but that it could not have been.”

The Fifth Circuit affirmed the district court’s apportionment of fault in all respects, but not without some questions on the interplay of these presumptions. The Gulfport appellate team emphasized that the Pennsylvania rule shifts the burden of persuasion to the offending vessel to show that particular statutory violation could not have been the cause of the incident. The Fifth Circuit agreed and wrote, “We agree with the district court that INR 9(g) establishes such a clear legal duty. The regulation expressly prohibits vessels from anchoring in narrow channels, except in exceptional circumstances.”

The Fifth Circuit panel also rejected Hooks’ legal argument that INR 9(g) is inapplicable unless the vessel is first found to be an obstruction. Instead, the panel agreed with the statutory interpretation and analysis offered by Gulfport Appellate Counsel and affirmed the 70% allocation of fault: “INR 9(g) is unambiguous. The rule (“shall…avoid”) expressly prohibits vessels from anchoring in narrow channels, subject only to the exception where circumstances do not permit alternative action.”

Ultimately, the Appellate Court affirmed the District Court’s judgment of liability in all respects. Like the Fifth Circuit opinion, the district court opinion provides useful guidance on navigating the troubled waters created by the presumptions in maritime law.

Fowler Rodriguez attorneys Edward F. LeBreton, III and Stuart Ponder successfully appealed a summary judgment to the United States Fifth Circuit Court of Appeals.

LeBreton and Ponder represented the Board of Commissioners for the Port of New Orleans in litigation against one of its bumbershoot insurers, Insurance Company of North America. The district court granted summary judgment in favor of INA on the basis that lack of notice to one of three severally subscribing insurers relieved all insurers of their obligations under the policy.

On appeal, the Board argued that, because the insurers’ obligations were several, notice to one insurer satisfied the requirement as to that insurer, regardless of possible lack of notice to one of the other insurers. In a per curium opinion, the Fifth Circuit held that any insurer who receives notice is obligated to provide its proportion of the coverage. More specifically, the duty of coverage is triggered for each insurer who receives notice under the policy. The Fifth Circuit remanded the case to the district court for further proceedings. The opinion may be found at Ins. Co. of N. Am. v. Bd. of Comm’rs of the Port of New Orleans, no. 12-30705, 2013 U.S. App. LEXIS 8884, 2013WL 1811892 (5th Cir. La. May 1, 2013).

On July 31, 2013, Edward LeBreton and Allison M. Hooker won a summary judgment declaring no coverage of a significant claim against their client, Liberty International Underwriters, in the U.S. District Court in Houston. Judge Kenneth M. Hoyt issued the Memorandum Opinion and Order.

The issue involved costs for removal of debris (ROD) following Hurricane Ike. The insured owned numerous production platforms in the Gulf of Mexico that were damaged in the storm. The insured used the limits of its Energy Package Policy and Windstorm Coverage to pay for property damage and Operators Extra Expense (OEE). The insured gave notice that it then intended to claim its ROD expenses under Excess Liabilities policies issued by Liberty and other underwriters. The total of the ROD claims against all layers of Excess Liabilities insurance was approximately $50,000,000.

The Excess Liabilities policies were endorsed to cover ROD. Liberty, however, reserved its right to deny coverage on the basis, among others, that the property damage and OEE claims did not reduce the retention under the Excess Liabilities Policies. The Excess Liabilities Policy provided that the retention would be depleted only by payment of claims that would be covered by the Excess Liabilities policy itself. While the property damage and ROD claims may have been covered under the Energy Package Policy, they were not covered by the Excess Liabilities Policy.

Working closely with counsel for the other Excess Liabilities underwriters, LeBreton and Hooker filed a complaint for a declaration that the property damage and OEE expenses did not reduce the retention and that the Excess Liabilities Policies were not triggered. The Memorandum Opinion and Order granted this relief. Indemnity Insurance Company of North America et al. v. W&T Offshore Inc., C.A. No. 4:12CV2469, 2013 U.S. Dist. LEXIS 111551, 2013 WL 4039594 (S.D. Tex. July 31, 2013).

Norman C. Sullivan and Jacob Gardner successfully obtained a favorable ruling for their client Smith Marine Towing (“Smith”) in a suit against it by Cashman Equipment Corporation (“Cashman”).

In 2009, Smith chartered one of its tugs to a Cashman subsidiary. The parties orally agreed to the charter arrangement between them; however, when Cashman did not get paid by its customer for the job for which it had chartered the tug, Cashman refused to pay Smith for the charter, taking the position that they only had to pay the charter if they had gotten paid by their customer. Despite that Cashman still owed Smith under the 2009 charter, the companies continued to engage in business with each other.

In late 2011, in a role reversal, Smith chartered a barge from Cashman (rather than Cashman chartering from Smith as before). The written agreement provided a set daily charter rate for the first thirty days but allowed Cashman to adjust the hire at its sole discretion after 30 days. It also provided that Smith could not sub-charter the barge without Cashman’s written permission. After the first thirty days, Cashman demanded that Smith return the barge. Smith could not return the barge because of its commitment to its customer. In response, Cashman increased the charter rate each day until Smith returned the barge. When this occurred, Fowler Rodriguez attorney Norm Sullivan advised Smith not to pay the increased, unreasonable hire. By the time Smith returned the barge, Cashman had raised the daily hire from $2,200 to $69,000 per day.

By the beginning of 2012, both companies owed each other money for chartered vessels. Settlement attempts failed. Cashman took the position that it was owed amounts exceeding $2.5 million, and its lowest settlement demand was $1.5 million. Smith was unwilling to pay that amount.

In the Eastern District of Louisiana, Judge Vance found that the position of Cashman, that Smith would not be paid for its tug charter if its subsidiary was not paid by its customer was not supported by the evidence, and that Smith was entitled to hire plus interest. She found that Smith breached the charter by sub-chartering the barge without written permission; however, she concluded that the the dramatic rate increase was unreasonable and Cashman was only entitled to the $2,200 per day. Cashman was entitled to $81,888.04, plus interest and attorney’s fees for its of charter claim. The Court reduced Cashman’s claim for attorney’s fees by about one-third, to $41,000.00.

Calculation of the final damage award came down to timing. Cashman owed Smith the money for its charter longer than Smith had owed its amount. Consequently, once interest was taken into consideration, Smith only owed Cashman about $8,000 rather than the $2,500,000.00 that Cashman initially claimed it was owed. Cashman has appealed.

George J. Fowler, III, Timothy W. Strickland and Luis E. Llamas obtained the dismissal of all claims filed against Hornbeck Offshore Services Inc. and related entities in the U.S. district court for the Southern District of Texas. The claims arose out of an alleged allision that occurred in Mexico’s Bay of Campeche, within Mexico’s Exclusive Economic Zone. Fowler Rodriguez argued that the case belonged in Mexico and should be dismissed based on the doctrines of forum non conveniens, comity and lack of subject-matter jurisdiction. Judge David Hitner addressed each factor required for a proper forum non conveniens analysis and dismissed the case to Mexico. He found Mexico to be an adequate and available forum. He then held that three of the five private interest factors weighed in favor of dismissal, while one weighed in favor of retention, and one was neutral. Similarly, Judge Hitner found three of the four public interest factors weighed in favor of dismissal, with the fourth being moot. The decision went on to note that Mexican law would likely apply if the case remained in the US.

The case is an example of the decades of experience Fowler Rodriguez has developed in handling matters in the US that involve issues in Latin America and vice versa.

Wade Webster recently assisted a private client with a contract at a shipyard in Louisiana for the construction of a double-hulled tanker and the concomitant ship mortgage from Wells Fargo.

The Oil Pollution Act of 1990 provided for a phase-in requirement that all oil cargos be transported in double-hulled ships. The Act phases out single-hull tank vessels over time for vessels larger than 5,000 gross tons. The final deadline to comply ends in 2013, so there has been a recent rush at the shipyards to commence construction of vessels that will comply with the mandate for double hulls. After the phase-out date, a single-hull vessel can continue to ship other types of products, but it can no longer be used to transport oil in U.S. waters.

Although most double-hulled ships are built outside of the United States, where shipbuilding costs are significantly lower, the Jones Act prohibits foreign-built vessels from shipments between U.S. ports. The Jones Act provides that a vessel cannot transport cargos among U.S. ports unless it is built in the United States, registered in the United States, owned by a United States citizen, and operated by a United States crew. In addition to affecting crude oil shipments from Alaska, the Oil Pollution Act of 1990 also affects transportation of oil products from U.S. refineries to U.S. ports and transporting fuel to customers (typically performed by tankers and coastal tank barges).

An important Cyprus construction-based company was hired by the Colombian government to build a submarine sewerage outfall off the coast of Cartagena through a World Bank loan. The Colombian entities engaged in a complex litigation strategy against the construction company including a request for sanctions by the World Bank; the case was even highlighted on the front page of the domestic newspaper.

Luis E. Cuervo successfully procured the dismissal of all claims against his client, including that it engaged in corrupt and fraudulent practices. Had sanctions been imposed, his client would have been declared ineligible to be awarded any projects financed by the World Bank. Despite an initial finding adverse to the client, Cuervo’s defense was successful before the World Bank Sanctions Board. The decision may be reviewed at the World Bank Sanctions Board web page under Decision No. 59, sanctions case 187. The Sanctions Board reviewed the dispute, concluded that INT’s allegations were insufficient, and terminated the proceedings in favor of Fowler Rodriguez’s client.

Cuervo’s effective litigation exemplifies Fowler Rodriguez’s experience and capabilities in resolving complex international commercial disputes as well as the firm’s established presence in Latin America.

Fowler Rodriguez obtained a $24 million verdict for Carnival Cruise Lines against Rolls-Royce. Rolls-Royce was found guilty of fraud by a unanimous jury. Rolls-Royce marketed its Mermaid pod propulsion system to Carnival for operation on their largest and most prestigious ship, the Queen Mary II. The jury found that at the time Rolls-Royce presented its pod to Carnival, Rolls-Royce knew the pod was defective and not fully developed.

George J. Fowler, III argued Rolls-Royce rushed into the market to defeat their competitors and sold an untested product that failed throughout the cruise industry. Furthermore, Fowler argued Rolls-Royce made money not only on the sales of the pods, but each time the bearings on the pods had to be replaced. He argued Rolls-Royce refused to pay for any of the replacement costs and made money off the repairs, which forced Carnival to file suit.

In his opening statement, Fowler expressed surprise as to why Rolls-Royce would allow this matter to go to trial. When the case was over, the judge and jury echoed Fowler’s initial concerns. U.S. District Judge Patricia Seitz said the jurors asked her why the case ever went to trial. “The first question they had was why didn’t these people settle when they have to work together,”. Judge Seitz also stated that she saw the trial possibly as a “bellweather for lawsuits” filed by other cruise lines that also found fault with Rolls-Royce’s pod system.

At trial, Rolls-Royce argued that problems with Carnival’s propulsion system were isolated incidents and that the Mermaid pods were not faulty. However, Carnival demonstrated that four sets of bearings were replaced on four pods from 2003 to 2008. A Carnival witness testified that the pod was so poorly engineered that the bearings could be made out of kryptonite and still be rendered useless. Rolls-Royce also argued that Carnival knew they were purchasing a risky, developmental product when they purchased the Mermaid pods.

Micky Arison, the Chairman of Carnival Corporation, testified at trial that the notion that he would take a risk on one of his company’s most prestigious ships was ludicrous. He had trusted and relied on Rolls-Royce’s assertions that the pods were going to function properly; he said he took people at their word and did his business deals “on a handshake.” When asked by Rolls-Royce counsel, the well-known criminal lawyer, Roy Black, whether he considered himself a “shrewd” businessman, Arison made the courtroom chuckle. He responded that he preferred to be considered a good scout of basketball talent, alluding to his successfull recruitment of LeBron James to his winning Miami Heat basketball team.

Arnaldo Perez, Carnival Corporation’s General Counsel, explained that.

Carnival had trusted in the Rolls-Royce brand and its claim that the Mermaid pod was a “proven, well-tested product.” This highly contentious case took nearly three weeks to try. Fowler and Black each took two hours for their closing arguments.

Antonio J. Rodriguez said, “We are very pleased with the jury and their decision. This was an important case for Carnival, and it was made possible by the firm personnel from multiple offices functioning as one team.”
Michael A. Rosen, from the firm’s Miami office, acted as trial attorney in support of the firm’s counsel from New Orleans, Messrs. Fowler and Rodriguez. The legal support team also included attorneys A.T. Chenault, Michael Harowski, and Cristi Fowler Chauvin.

t was ten days before Christmas and trial attorney Delos “Dee” Flint and associate Jacob Gardner sat in Federal Court waiting for a verdict. At 6:00 p.m., a jury of three wise men and four equally wise women re-entered the courtroom and returned a defense verdict in favor of Ensco Offshore Company, sending a plaintiff seeking $3 Million home to Pensacola, Florida empty-handed.

John Chapman, an electrician with 17 years experience both onshore and offshore , filed a suit against Ensco Offshore Company alleging Jones Act negligence, unseaworthiness and that he was owed additional maintenance. Chapman was injured as he disconnected a manifold gauge from a semi-submersible’s air-conditioning system and sustained severe Freon burns to the backside of both hands. Mr. Chapman rehabbed for close to a year and made over 150 visits to the physical therapists at the Andrews Institute (operated by noted orthopedic surgeon, Dr. James Andrews) in Gulf Breeze and Pensacola, Florida. A Functional Capacity Evaluation was conducted at the end of his rehabilitation, and he was released to return to medium to heavy level work. Mr. Chapman alleged that he was negligently trained, that he wasn’t provided a safe place to work and that the rig’s equipment was deficient in that the air conditioning system did not have Schraeder valves in all of the service ports. As a result of his injuries, Chapman alleged he could not return to work as an electrician.

Ensco countered that it had a Safe System of Work in place, which provided job safety analyses and work instructions and that the plaintiff ignored the safety precautions that were designed to prevent him from getting injured. Furthermore, he was injured when he performed a job which he was not assigned to do. The case was tried for three days before the Honorable Judge Jay Zainey in the United States District Court for the Eastern District of Louisiana. Late in the evening on December 15, 2010, the seven person jury returned a verdict finding that there was no Jones Act negligence, the rig was seaworthy and that no additional maintenance was owed to the plaintiff. Essentially, the jury found that the plaintiff failed to follow the safety rules that were in place and that he, and he alone, caused his injuries. Implicitly, the jury also found that the plaintiff, despite having a physical handicap as a result of the injury, could return to gainful employment.

At trial, the plaintiff’s co-workers, including his immediate supervisor, testified about the job to be performed and the nature of the work the plaintiff was involved in at the time of his injury.

Julie Slocum, Manager of Risk Management, testified on behalf of Ensco with respect to post accident rehabilitation and maintenance and cure issues. Rusty Fox, a rig manager based in Houston, Texas, testified concerning the Ensco Safe System of Work and the various checks and balances that now exist to ensure employees’ safety onboard semi-submersibles.

In addition to assistance from Jacob Gardner, new associate Andy Brown, paralegal Pat Bridges and secretary Linda Becnel assisted in the trial preparations which led to a successful outcome at trial.

In Seaward Marine Services, Inc. v. Grillot Construction, LLC et al, C.A. 08 cv 587, U.S.D.C - SDMS., Fowler Rodriguez obtained favorable rulings on key motions, which lead to a settlement and significant recoveries for Grillot Construction, Inc., and its co-plaintiff, Seward Marine Services, Inc. The case was litigated primarily by Edward “Bret” LeBreton, Todd Crawford, and Stuart Ponder.

Beau Rivage hired Grillot as its general contractor to perform a variety of maintenance and repair operations on the barges supporting its casino in Biloxi, Mississippi, including underwater painting, removal of marine growth and dredging. Grillot hired Seaward Marine as its subcontractor to assist with removal of growth and debris from the barges. When a dispute arose concerning what work was included in the bid and what would cost extra, Seaward filed suit against Beau Rivage and Grillot.

The firm’s attorneys first negotiated a settlement between Seaward and Grillot and then began prosecuting their claims jointly against Beau Rivage. Beau Rivage counter-claimed against Grillot alleging breach of contract, fraud, misrepresentation and failure to pay sales taxes.

The court granted motions brought by FR dismissing Beau Rivage’s claims based on alleged inconsistent terms in the general and subcontracts regarding debris, day rates, per diems and applicable law; failure to pay sales tax; overestimating the amount of debris and growth on the barges; waiver and settlement and attorneys fees.

The court also denied Beau Rivage’s motions based on: alleged failure to remove dredge spoils; whether unexpected debris and extra painting were included in the bid price or extras; premature billing for painting; alleged fraud in relation to a disposal subcontract and certain pay applications; negligent misrepresentation; and breach of contract.

While the court dismissed Grillot’s claim for quantum meruit, it denied Beau Rivage’s motion to dismiss claims for unjust enrichment. Following the rulings, the parties settled.

On July 31, 2013, Edward LeBreton and Allison M. Hooker won a summary judgment declaring no coverage of a significant claim against their client, Liberty International Underwriters, in the U.S. District Court in Houston. Judge Kenneth M. Hoyt issued the Memorandum Opinion and Order.

The issue involved costs for removal of debris (ROD) following Hurricane Ike. The insured owned numerous production platforms in the Gulf of Mexico that were damaged in the storm. The insured used the limits of its Energy Package Policy and Windstorm Coverage to pay for property damage and Operators Extra Expense (OEE). The insured gave notice that it then intended to claim its ROD expenses under Excess Liabilities policies issued by Liberty and other underwriters. The total of the ROD claims against all layers of Excess Liabilities insurance was approximately $50,000,000.

The Excess Liabilities policies were endorsed to cover ROD. Liberty, however, reserved its right to deny coverage on the basis, among others, that the property damage and OEE claims did not reduce the retention under the Excess Liabilities Policies. The Excess Liabilities Policy provided that the retention would be depleted only by payment of claims that would be covered by the Excess Liabilities policy itself. While the property damage and ROD claims may have been covered under the Energy Package Policy, they were not covered by the Excess Liabilities Policy.

Working closely with counsel for the other Excess Liabilities underwriters, LeBreton and Hooker filed a complaint for a declaration that the property damage and OEE expenses did not reduce the retention and that the Excess Liabilities Policies were not triggered. The Memorandum Opinion and Order granted this relief. Indemnity Insurance Company of North America et al. v. W&T Offshore Inc., C.A. No. 4:12CV2469, 2013 U.S. Dist. LEXIS 111551, 2013 WL 4039594 (S.D. Tex. July 31, 2013).

Norman C. Sullivan and Jacob Gardner successfully obtained a favorable ruling for their client Smith Marine Towing (“Smith”) in a suit against it by Cashman Equipment Corporation (“Cashman”).

In 2009, Smith chartered one of its tugs to a Cashman subsidiary. The parties orally agreed to the charter arrangement between them; however, when Cashman did not get paid by its customer for the job for which it had chartered the tug, Cashman refused to pay Smith for the charter, taking the position that they only had to pay the charter if they had gotten paid by their customer. Despite that Cashman still owed Smith under the 2009 charter, the companies continued to engage in business with each other.

In late 2011, in a role reversal, Smith chartered a barge from Cashman (rather than Cashman chartering from Smith as before). The written agreement provided a set daily charter rate for the first thirty days but allowed Cashman to adjust the hire at its sole discretion after 30 days. It also provided that Smith could not sub-charter the barge without Cashman’s written permission. After the first thirty days, Cashman demanded that Smith return the barge. Smith could not return the barge because of its commitment to its customer. In response, Cashman increased the charter rate each day until Smith returned the barge. When this occurred, Fowler Rodriguez attorney Norm Sullivan advised Smith not to pay the increased, unreasonable hire. By the time Smith returned the barge, Cashman had raised the daily hire from $2,200 to $69,000 per day.

By the beginning of 2012, both companies owed each other money for chartered vessels. Settlement attempts failed. Cashman took the position that it was owed amounts exceeding $2.5 million, and its lowest settlement demand was $1.5 million. Smith was unwilling to pay that amount.

In the Eastern District of Louisiana, Judge Vance found that the position of Cashman, that Smith would not be paid for its tug charter if its subsidiary was not paid by its customer was not supported by the evidence, and that Smith was entitled to hire plus interest. She found that Smith breached the charter by sub-chartering the barge without written permission; however, she concluded that the the dramatic rate increase was unreasonable and Cashman was only entitled to the $2,200 per day. Cashman was entitled to $81,888.04, plus interest and attorney’s fees for its of charter claim. The Court reduced Cashman’s claim for attorney’s fees by about one-third, to $41,000.00.

Calculation of the final damage award came down to timing. Cashman owed Smith the money for its charter longer than Smith had owed its amount. Consequently, once interest was taken into consideration, Smith only owed Cashman about $8,000 rather than the $2,500,000.00 that Cashman initially claimed it was owed. Cashman has appealed.

George J. Fowler, III, Timothy W. Strickland and Luis E. Llamas obtained the dismissal of all claims filed against Hornbeck Offshore Services Inc. and related entities in the U.S. district court for the Southern District of Texas. The claims arose out of an alleged allision that occurred in Mexico’s Bay of Campeche, within Mexico’s Exclusive Economic Zone. Fowler Rodriguez argued that the case belonged in Mexico and should be dismissed based on the doctrines of forum non conveniens, comity and lack of subject-matter jurisdiction. Judge David Hitner addressed each factor required for a proper forum non conveniens analysis and dismissed the case to Mexico. He found Mexico to be an adequate and available forum. He then held that three of the five private interest factors weighed in favor of dismissal, while one weighed in favor of retention, and one was neutral. Similarly, Judge Hitner found three of the four public interest factors weighed in favor of dismissal, with the fourth being moot. The decision went on to note that Mexican law would likely apply if the case remained in the US.

The case is an example of the decades of experience Fowler Rodriguez has developed in handling matters in the US that involve issues in Latin America and vice versa.

Wade Webster recently assisted a private client with a contract at a shipyard in Louisiana for the construction of a double-hulled tanker and the concomitant ship mortgage from Wells Fargo.

The Oil Pollution Act of 1990 provided for a phase-in requirement that all oil cargos be transported in double-hulled ships. The Act phases out single-hull tank vessels over time for vessels larger than 5,000 gross tons. The final deadline to comply ends in 2013, so there has been a recent rush at the shipyards to commence construction of vessels that will comply with the mandate for double hulls. After the phase-out date, a single-hull vessel can continue to ship other types of products, but it can no longer be used to transport oil in U.S. waters.

Although most double-hulled ships are built outside of the United States, where shipbuilding costs are significantly lower, the Jones Act prohibits foreign-built vessels from shipments between U.S. ports. The Jones Act provides that a vessel cannot transport cargos among U.S. ports unless it is built in the United States, registered in the United States, owned by a United States citizen, and operated by a United States crew. In addition to affecting crude oil shipments from Alaska, the Oil Pollution Act of 1990 also affects transportation of oil products from U.S. refineries to U.S. ports and transporting fuel to customers (typically performed by tankers and coastal tank barges).

An important Cyprus construction-based company was hired by the Colombian government to build a submarine sewerage outfall off the coast of Cartagena through a World Bank loan. The Colombian entities engaged in a complex litigation strategy against the construction company including a request for sanctions by the World Bank; the case was even highlighted on the front page of the domestic newspaper.

Luis E. Cuervo successfully procured the dismissal of all claims against his client, including that it engaged in corrupt and fraudulent practices. Had sanctions been imposed, his client would have been declared ineligible to be awarded any projects financed by the World Bank. Despite an initial finding adverse to the client, Cuervo’s defense was successful before the World Bank Sanctions Board. The decision may be reviewed at the World Bank Sanctions Board web page under Decision No. 59, sanctions case 187. The Sanctions Board reviewed the dispute, concluded that INT’s allegations were insufficient, and terminated the proceedings in favor of Fowler Rodriguez’s client.

Cuervo’s effective litigation exemplifies Fowler Rodriguez’s experience and capabilities in resolving complex international commercial disputes as well as the firm’s established presence in Latin America.

Fowler Rodriguez obtained a $24 million verdict for Carnival Cruise Lines against Rolls-Royce. Rolls-Royce was found guilty of fraud by a unanimous jury. Rolls-Royce marketed its Mermaid pod propulsion system to Carnival for operation on their largest and most prestigious ship, the Queen Mary II. The jury found that at the time Rolls-Royce presented its pod to Carnival, Rolls-Royce knew the pod was defective and not fully developed.

George J. Fowler, III argued Rolls-Royce rushed into the market to defeat their competitors and sold an untested product that failed throughout the cruise industry. Furthermore, Fowler argued Rolls-Royce made money not only on the sales of the pods, but each time the bearings on the pods had to be replaced. He argued Rolls-Royce refused to pay for any of the replacement costs and made money off the repairs, which forced Carnival to file suit.

In his opening statement, Fowler expressed surprise as to why Rolls-Royce would allow this matter to go to trial. When the case was over, the judge and jury echoed Fowler’s initial concerns. U.S. District Judge Patricia Seitz said the jurors asked her why the case ever went to trial. “The first question they had was why didn’t these people settle when they have to work together,”. Judge Seitz also stated that she saw the trial possibly as a “bellweather for lawsuits” filed by other cruise lines that also found fault with Rolls-Royce’s pod system.

At trial, Rolls-Royce argued that problems with Carnival’s propulsion system were isolated incidents and that the Mermaid pods were not faulty. However, Carnival demonstrated that four sets of bearings were replaced on four pods from 2003 to 2008. A Carnival witness testified that the pod was so poorly engineered that the bearings could be made out of kryptonite and still be rendered useless. Rolls-Royce also argued that Carnival knew they were purchasing a risky, developmental product when they purchased the Mermaid pods.

Micky Arison, the Chairman of Carnival Corporation, testified at trial that the notion that he would take a risk on one of his company’s most prestigious ships was ludicrous. He had trusted and relied on Rolls-Royce’s assertions that the pods were going to function properly; he said he took people at their word and did his business deals “on a handshake.” When asked by Rolls-Royce counsel, the well-known criminal lawyer, Roy Black, whether he considered himself a “shrewd” businessman, Arison made the courtroom chuckle. He responded that he preferred to be considered a good scout of basketball talent, alluding to his successfull recruitment of LeBron James to his winning Miami Heat basketball team.

Arnaldo Perez, Carnival Corporation’s General Counsel, explained that.

Carnival had trusted in the Rolls-Royce brand and its claim that the Mermaid pod was a “proven, well-tested product.” This highly contentious case took nearly three weeks to try. Fowler and Black each took two hours for their closing arguments.

Antonio J. Rodriguez said, “We are very pleased with the jury and their decision. This was an important case for Carnival, and it was made possible by the firm personnel from multiple offices functioning as one team.”
Michael A. Rosen, from the firm’s Miami office, acted as trial attorney in support of the firm’s counsel from New Orleans, Messrs. Fowler and Rodriguez. The legal support team also included attorneys A.T. Chenault, Michael Harowski, and Cristi Fowler Chauvin.

t was ten days before Christmas and trial attorney Delos “Dee” Flint and associate Jacob Gardner sat in Federal Court waiting for a verdict. At 6:00 p.m., a jury of three wise men and four equally wise women re-entered the courtroom and returned a defense verdict in favor of Ensco Offshore Company, sending a plaintiff seeking $3 Million home to Pensacola, Florida empty-handed.

John Chapman, an electrician with 17 years experience both onshore and offshore , filed a suit against Ensco Offshore Company alleging Jones Act negligence, unseaworthiness and that he was owed additional maintenance. Chapman was injured as he disconnected a manifold gauge from a semi-submersible’s air-conditioning system and sustained severe Freon burns to the backside of both hands. Mr. Chapman rehabbed for close to a year and made over 150 visits to the physical therapists at the Andrews Institute (operated by noted orthopedic surgeon, Dr. James Andrews) in Gulf Breeze and Pensacola, Florida. A Functional Capacity Evaluation was conducted at the end of his rehabilitation, and he was released to return to medium to heavy level work. Mr. Chapman alleged that he was negligently trained, that he wasn’t provided a safe place to work and that the rig’s equipment was deficient in that the air conditioning system did not have Schraeder valves in all of the service ports. As a result of his injuries, Chapman alleged he could not return to work as an electrician.

Ensco countered that it had a Safe System of Work in place, which provided job safety analyses and work instructions and that the plaintiff ignored the safety precautions that were designed to prevent him from getting injured. Furthermore, he was injured when he performed a job which he was not assigned to do. The case was tried for three days before the Honorable Judge Jay Zainey in the United States District Court for the Eastern District of Louisiana. Late in the evening on December 15, 2010, the seven person jury returned a verdict finding that there was no Jones Act negligence, the rig was seaworthy and that no additional maintenance was owed to the plaintiff. Essentially, the jury found that the plaintiff failed to follow the safety rules that were in place and that he, and he alone, caused his injuries. Implicitly, the jury also found that the plaintiff, despite having a physical handicap as a result of the injury, could return to gainful employment.

At trial, the plaintiff’s co-workers, including his immediate supervisor, testified about the job to be performed and the nature of the work the plaintiff was involved in at the time of his injury.

Julie Slocum, Manager of Risk Management, testified on behalf of Ensco with respect to post accident rehabilitation and maintenance and cure issues. Rusty Fox, a rig manager based in Houston, Texas, testified concerning the Ensco Safe System of Work and the various checks and balances that now exist to ensure employees’ safety onboard semi-submersibles.

In addition to assistance from Jacob Gardner, new associate Andy Brown, paralegal Pat Bridges and secretary Linda Becnel assisted in the trial preparations which led to a successful outcome at trial.

In Seaward Marine Services, Inc. v. Grillot Construction, LLC et al, C.A. 08 cv 587, U.S.D.C - SDMS., Fowler Rodriguez obtained favorable rulings on key motions, which lead to a settlement and significant recoveries for Grillot Construction, Inc., and its co-plaintiff, Seward Marine Services, Inc. The case was litigated primarily by Edward “Bret” LeBreton, Todd Crawford, and Stuart Ponder.

Beau Rivage hired Grillot as its general contractor to perform a variety of maintenance and repair operations on the barges supporting its casino in Biloxi, Mississippi, including underwater painting, removal of marine growth and dredging. Grillot hired Seaward Marine as its subcontractor to assist with removal of growth and debris from the barges. When a dispute arose concerning what work was included in the bid and what would cost extra, Seaward filed suit against Beau Rivage and Grillot.

The firm’s attorneys first negotiated a settlement between Seaward and Grillot and then began prosecuting their claims jointly against Beau Rivage. Beau Rivage counter-claimed against Grillot alleging breach of contract, fraud, misrepresentation and failure to pay sales taxes.

The court granted motions brought by FR dismissing Beau Rivage’s claims based on alleged inconsistent terms in the general and subcontracts regarding debris, day rates, per diems and applicable law; failure to pay sales tax; overestimating the amount of debris and growth on the barges; waiver and settlement and attorneys fees.

The court also denied Beau Rivage’s motions based on: alleged failure to remove dredge spoils; whether unexpected debris and extra painting were included in the bid price or extras; premature billing for painting; alleged fraud in relation to a disposal subcontract and certain pay applications; negligent misrepresentation; and breach of contract.

While the court dismissed Grillot’s claim for quantum meruit, it denied Beau Rivage’s motion to dismiss claims for unjust enrichment. Following the rulings, the parties settled.

On July 31, 2013, Edward LeBreton and Allison M. Hooker won a summary judgment declaring no coverage of a significant claim against their client, Liberty International Underwriters, in the U.S. District Court in Houston. Judge Kenneth M. Hoyt issued the Memorandum Opinion and Order.

The issue involved costs for removal of debris (ROD) following Hurricane Ike. The insured owned numerous production platforms in the Gulf of Mexico that were damaged in the storm. The insured used the limits of its Energy Package Policy and Windstorm Coverage to pay for property damage and Operators Extra Expense (OEE). The insured gave notice that it then intended to claim its ROD expenses under Excess Liabilities policies issued by Liberty and other underwriters. The total of the ROD claims against all layers of Excess Liabilities insurance was approximately $50,000,000.

The Excess Liabilities policies were endorsed to cover ROD. Liberty, however, reserved its right to deny coverage on the basis, among others, that the property damage and OEE claims did not reduce the retention under the Excess Liabilities Policies. The Excess Liabilities Policy provided that the retention would be depleted only by payment of claims that would be covered by the Excess Liabilities policy itself. While the property damage and ROD claims may have been covered under the Energy Package Policy, they were not covered by the Excess Liabilities Policy.

Working closely with counsel for the other Excess Liabilities underwriters, LeBreton and Hooker filed a complaint for a declaration that the property damage and OEE expenses did not reduce the retention and that the Excess Liabilities Policies were not triggered. The Memorandum Opinion and Order granted this relief. Indemnity Insurance Company of North America et al. v. W&T Offshore Inc., C.A. No. 4:12CV2469, 2013 U.S. Dist. LEXIS 111551, 2013 WL 4039594 (S.D. Tex. July 31, 2013).

Norman C. Sullivan and Jacob Gardner successfully obtained a favorable ruling for their client Smith Marine Towing (“Smith”) in a suit against it by Cashman Equipment Corporation (“Cashman”).

In 2009, Smith chartered one of its tugs to a Cashman subsidiary. The parties orally agreed to the charter arrangement between them; however, when Cashman did not get paid by its customer for the job for which it had chartered the tug, Cashman refused to pay Smith for the charter, taking the position that they only had to pay the charter if they had gotten paid by their customer. Despite that Cashman still owed Smith under the 2009 charter, the companies continued to engage in business with each other.

In late 2011, in a role reversal, Smith chartered a barge from Cashman (rather than Cashman chartering from Smith as before). The written agreement provided a set daily charter rate for the first thirty days but allowed Cashman to adjust the hire at its sole discretion after 30 days. It also provided that Smith could not sub-charter the barge without Cashman’s written permission. After the first thirty days, Cashman demanded that Smith return the barge. Smith could not return the barge because of its commitment to its customer. In response, Cashman increased the charter rate each day until Smith returned the barge. When this occurred, Fowler Rodriguez attorney Norm Sullivan advised Smith not to pay the increased, unreasonable hire. By the time Smith returned the barge, Cashman had raised the daily hire from $2,200 to $69,000 per day.

By the beginning of 2012, both companies owed each other money for chartered vessels. Settlement attempts failed. Cashman took the position that it was owed amounts exceeding $2.5 million, and its lowest settlement demand was $1.5 million. Smith was unwilling to pay that amount.

In the Eastern District of Louisiana, Judge Vance found that the position of Cashman, that Smith would not be paid for its tug charter if its subsidiary was not paid by its customer was not supported by the evidence, and that Smith was entitled to hire plus interest. She found that Smith breached the charter by sub-chartering the barge without written permission; however, she concluded that the the dramatic rate increase was unreasonable and Cashman was only entitled to the $2,200 per day. Cashman was entitled to $81,888.04, plus interest and attorney’s fees for its of charter claim. The Court reduced Cashman’s claim for attorney’s fees by about one-third, to $41,000.00.

Calculation of the final damage award came down to timing. Cashman owed Smith the money for its charter longer than Smith had owed its amount. Consequently, once interest was taken into consideration, Smith only owed Cashman about $8,000 rather than the $2,500,000.00 that Cashman initially claimed it was owed. Cashman has appealed.

George J. Fowler, III, Timothy W. Strickland and Luis E. Llamas obtained the dismissal of all claims filed against Hornbeck Offshore Services Inc. and related entities in the U.S. district court for the Southern District of Texas. The claims arose out of an alleged allision that occurred in Mexico’s Bay of Campeche, within Mexico’s Exclusive Economic Zone. Fowler Rodriguez argued that the case belonged in Mexico and should be dismissed based on the doctrines of forum non conveniens, comity and lack of subject-matter jurisdiction. Judge David Hitner addressed each factor required for a proper forum non conveniens analysis and dismissed the case to Mexico. He found Mexico to be an adequate and available forum. He then held that three of the five private interest factors weighed in favor of dismissal, while one weighed in favor of retention, and one was neutral. Similarly, Judge Hitner found three of the four public interest factors weighed in favor of dismissal, with the fourth being moot. The decision went on to note that Mexican law would likely apply if the case remained in the US.

The case is an example of the decades of experience Fowler Rodriguez has developed in handling matters in the US that involve issues in Latin America and vice versa.

Wade Webster recently assisted a private client with a contract at a shipyard in Louisiana for the construction of a double-hulled tanker and the concomitant ship mortgage from Wells Fargo.

The Oil Pollution Act of 1990 provided for a phase-in requirement that all oil cargos be transported in double-hulled ships. The Act phases out single-hull tank vessels over time for vessels larger than 5,000 gross tons. The final deadline to comply ends in 2013, so there has been a recent rush at the shipyards to commence construction of vessels that will comply with the mandate for double hulls. After the phase-out date, a single-hull vessel can continue to ship other types of products, but it can no longer be used to transport oil in U.S. waters.

Although most double-hulled ships are built outside of the United States, where shipbuilding costs are significantly lower, the Jones Act prohibits foreign-built vessels from shipments between U.S. ports. The Jones Act provides that a vessel cannot transport cargos among U.S. ports unless it is built in the United States, registered in the United States, owned by a United States citizen, and operated by a United States crew. In addition to affecting crude oil shipments from Alaska, the Oil Pollution Act of 1990 also affects transportation of oil products from U.S. refineries to U.S. ports and transporting fuel to customers (typically performed by tankers and coastal tank barges).

An important Cyprus construction-based company was hired by the Colombian government to build a submarine sewerage outfall off the coast of Cartagena through a World Bank loan. The Colombian entities engaged in a complex litigation strategy against the construction company including a request for sanctions by the World Bank; the case was even highlighted on the front page of the domestic newspaper.

Luis E. Cuervo successfully procured the dismissal of all claims against his client, including that it engaged in corrupt and fraudulent practices. Had sanctions been imposed, his client would have been declared ineligible to be awarded any projects financed by the World Bank. Despite an initial finding adverse to the client, Cuervo’s defense was successful before the World Bank Sanctions Board. The decision may be reviewed at the World Bank Sanctions Board web page under Decision No. 59, sanctions case 187. The Sanctions Board reviewed the dispute, concluded that INT’s allegations were insufficient, and terminated the proceedings in favor of Fowler Rodriguez’s client.

Cuervo’s effective litigation exemplifies Fowler Rodriguez’s experience and capabilities in resolving complex international commercial disputes as well as the firm’s established presence in Latin America.

Fowler Rodriguez obtained a $24 million verdict for Carnival Cruise Lines against Rolls-Royce. Rolls-Royce was found guilty of fraud by a unanimous jury. Rolls-Royce marketed its Mermaid pod propulsion system to Carnival for operation on their largest and most prestigious ship, the Queen Mary II. The jury found that at the time Rolls-Royce presented its pod to Carnival, Rolls-Royce knew the pod was defective and not fully developed.

George J. Fowler, III argued Rolls-Royce rushed into the market to defeat their competitors and sold an untested product that failed throughout the cruise industry. Furthermore, Fowler argued Rolls-Royce made money not only on the sales of the pods, but each time the bearings on the pods had to be replaced. He argued Rolls-Royce refused to pay for any of the replacement costs and made money off the repairs, which forced Carnival to file suit.

In his opening statement, Fowler expressed surprise as to why Rolls-Royce would allow this matter to go to trial. When the case was over, the judge and jury echoed Fowler’s initial concerns. U.S. District Judge Patricia Seitz said the jurors asked her why the case ever went to trial. “The first question they had was why didn’t these people settle when they have to work together,”. Judge Seitz also stated that she saw the trial possibly as a “bellweather for lawsuits” filed by other cruise lines that also found fault with Rolls-Royce’s pod system.

At trial, Rolls-Royce argued that problems with Carnival’s propulsion system were isolated incidents and that the Mermaid pods were not faulty. However, Carnival demonstrated that four sets of bearings were replaced on four pods from 2003 to 2008. A Carnival witness testified that the pod was so poorly engineered that the bearings could be made out of kryptonite and still be rendered useless. Rolls-Royce also argued that Carnival knew they were purchasing a risky, developmental product when they purchased the Mermaid pods.

Micky Arison, the Chairman of Carnival Corporation, testified at trial that the notion that he would take a risk on one of his company’s most prestigious ships was ludicrous. He had trusted and relied on Rolls-Royce’s assertions that the pods were going to function properly; he said he took people at their word and did his business deals “on a handshake.” When asked by Rolls-Royce counsel, the well-known criminal lawyer, Roy Black, whether he considered himself a “shrewd” businessman, Arison made the courtroom chuckle. He responded that he preferred to be considered a good scout of basketball talent, alluding to his successfull recruitment of LeBron James to his winning Miami Heat basketball team.

Arnaldo Perez, Carnival Corporation’s General Counsel, explained that.

Carnival had trusted in the Rolls-Royce brand and its claim that the Mermaid pod was a “proven, well-tested product.” This highly contentious case took nearly three weeks to try. Fowler and Black each took two hours for their closing arguments.

Antonio J. Rodriguez said, “We are very pleased with the jury and their decision. This was an important case for Carnival, and it was made possible by the firm personnel from multiple offices functioning as one team.”
Michael A. Rosen, from the firm’s Miami office, acted as trial attorney in support of the firm’s counsel from New Orleans, Messrs. Fowler and Rodriguez. The legal support team also included attorneys A.T. Chenault, Michael Harowski, and Cristi Fowler Chauvin.

t was ten days before Christmas and trial attorney Delos “Dee” Flint and associate Jacob Gardner sat in Federal Court waiting for a verdict. At 6:00 p.m., a jury of three wise men and four equally wise women re-entered the courtroom and returned a defense verdict in favor of Ensco Offshore Company, sending a plaintiff seeking $3 Million home to Pensacola, Florida empty-handed.

John Chapman, an electrician with 17 years experience both onshore and offshore , filed a suit against Ensco Offshore Company alleging Jones Act negligence, unseaworthiness and that he was owed additional maintenance. Chapman was injured as he disconnected a manifold gauge from a semi-submersible’s air-conditioning system and sustained severe Freon burns to the backside of both hands. Mr. Chapman rehabbed for close to a year and made over 150 visits to the physical therapists at the Andrews Institute (operated by noted orthopedic surgeon, Dr. James Andrews) in Gulf Breeze and Pensacola, Florida. A Functional Capacity Evaluation was conducted at the end of his rehabilitation, and he was released to return to medium to heavy level work. Mr. Chapman alleged that he was negligently trained, that he wasn’t provided a safe place to work and that the rig’s equipment was deficient in that the air conditioning system did not have Schraeder valves in all of the service ports. As a result of his injuries, Chapman alleged he could not return to work as an electrician.

Ensco countered that it had a Safe System of Work in place, which provided job safety analyses and work instructions and that the plaintiff ignored the safety precautions that were designed to prevent him from getting injured. Furthermore, he was injured when he performed a job which he was not assigned to do. The case was tried for three days before the Honorable Judge Jay Zainey in the United States District Court for the Eastern District of Louisiana. Late in the evening on December 15, 2010, the seven person jury returned a verdict finding that there was no Jones Act negligence, the rig was seaworthy and that no additional maintenance was owed to the plaintiff. Essentially, the jury found that the plaintiff failed to follow the safety rules that were in place and that he, and he alone, caused his injuries. Implicitly, the jury also found that the plaintiff, despite having a physical handicap as a result of the injury, could return to gainful employment.

At trial, the plaintiff’s co-workers, including his immediate supervisor, testified about the job to be performed and the nature of the work the plaintiff was involved in at the time of his injury.

Julie Slocum, Manager of Risk Management, testified on behalf of Ensco with respect to post accident rehabilitation and maintenance and cure issues. Rusty Fox, a rig manager based in Houston, Texas, testified concerning the Ensco Safe System of Work and the various checks and balances that now exist to ensure employees’ safety onboard semi-submersibles.

In addition to assistance from Jacob Gardner, new associate Andy Brown, paralegal Pat Bridges and secretary Linda Becnel assisted in the trial preparations which led to a successful outcome at trial.

In Seaward Marine Services, Inc. v. Grillot Construction, LLC et al, C.A. 08 cv 587, U.S.D.C - SDMS., Fowler Rodriguez obtained favorable rulings on key motions, which lead to a settlement and significant recoveries for Grillot Construction, Inc., and its co-plaintiff, Seward Marine Services, Inc. The case was litigated primarily by Edward “Bret” LeBreton, Todd Crawford, and Stuart Ponder.

Beau Rivage hired Grillot as its general contractor to perform a variety of maintenance and repair operations on the barges supporting its casino in Biloxi, Mississippi, including underwater painting, removal of marine growth and dredging. Grillot hired Seaward Marine as its subcontractor to assist with removal of growth and debris from the barges. When a dispute arose concerning what work was included in the bid and what would cost extra, Seaward filed suit against Beau Rivage and Grillot.

The firm’s attorneys first negotiated a settlement between Seaward and Grillot and then began prosecuting their claims jointly against Beau Rivage. Beau Rivage counter-claimed against Grillot alleging breach of contract, fraud, misrepresentation and failure to pay sales taxes.

The court granted motions brought by FR dismissing Beau Rivage’s claims based on alleged inconsistent terms in the general and subcontracts regarding debris, day rates, per diems and applicable law; failure to pay sales tax; overestimating the amount of debris and growth on the barges; waiver and settlement and attorneys fees.

The court also denied Beau Rivage’s motions based on: alleged failure to remove dredge spoils; whether unexpected debris and extra painting were included in the bid price or extras; premature billing for painting; alleged fraud in relation to a disposal subcontract and certain pay applications; negligent misrepresentation; and breach of contract.

While the court dismissed Grillot’s claim for quantum meruit, it denied Beau Rivage’s motion to dismiss claims for unjust enrichment. Following the rulings, the parties settled.

On July 31, 2013, Edward LeBreton and Allison M. Hooker won a summary judgment declaring no coverage of a significant claim against their client, Liberty International Underwriters, in the U.S. District Court in Houston. Judge Kenneth M. Hoyt issued the Memorandum Opinion and Order.

The issue involved costs for removal of debris (ROD) following Hurricane Ike. The insured owned numerous production platforms in the Gulf of Mexico that were damaged in the storm. The insured used the limits of its Energy Package Policy and Windstorm Coverage to pay for property damage and Operators Extra Expense (OEE). The insured gave notice that it then intended to claim its ROD expenses under Excess Liabilities policies issued by Liberty and other underwriters. The total of the ROD claims against all layers of Excess Liabilities insurance was approximately $50,000,000.

The Excess Liabilities policies were endorsed to cover ROD. Liberty, however, reserved its right to deny coverage on the basis, among others, that the property damage and OEE claims did not reduce the retention under the Excess Liabilities Policies. The Excess Liabilities Policy provided that the retention would be depleted only by payment of claims that would be covered by the Excess Liabilities policy itself. While the property damage and ROD claims may have been covered under the Energy Package Policy, they were not covered by the Excess Liabilities Policy.

Working closely with counsel for the other Excess Liabilities underwriters, LeBreton and Hooker filed a complaint for a declaration that the property damage and OEE expenses did not reduce the retention and that the Excess Liabilities Policies were not triggered. The Memorandum Opinion and Order granted this relief. Indemnity Insurance Company of North America et al. v. W&T Offshore Inc., C.A. No. 4:12CV2469, 2013 U.S. Dist. LEXIS 111551, 2013 WL 4039594 (S.D. Tex. July 31, 2013).

Norman C. Sullivan and Jacob Gardner successfully obtained a favorable ruling for their client Smith Marine Towing (“Smith”) in a suit against it by Cashman Equipment Corporation (“Cashman”).

In 2009, Smith chartered one of its tugs to a Cashman subsidiary. The parties orally agreed to the charter arrangement between them; however, when Cashman did not get paid by its customer for the job for which it had chartered the tug, Cashman refused to pay Smith for the charter, taking the position that they only had to pay the charter if they had gotten paid by their customer. Despite that Cashman still owed Smith under the 2009 charter, the companies continued to engage in business with each other.

In late 2011, in a role reversal, Smith chartered a barge from Cashman (rather than Cashman chartering from Smith as before). The written agreement provided a set daily charter rate for the first thirty days but allowed Cashman to adjust the hire at its sole discretion after 30 days. It also provided that Smith could not sub-charter the barge without Cashman’s written permission. After the first thirty days, Cashman demanded that Smith return the barge. Smith could not return the barge because of its commitment to its customer. In response, Cashman increased the charter rate each day until Smith returned the barge. When this occurred, Fowler Rodriguez attorney Norm Sullivan advised Smith not to pay the increased, unreasonable hire. By the time Smith returned the barge, Cashman had raised the daily hire from $2,200 to $69,000 per day.

By the beginning of 2012, both companies owed each other money for chartered vessels. Settlement attempts failed. Cashman took the position that it was owed amounts exceeding $2.5 million, and its lowest settlement demand was $1.5 million. Smith was unwilling to pay that amount.

In the Eastern District of Louisiana, Judge Vance found that the position of Cashman, that Smith would not be paid for its tug charter if its subsidiary was not paid by its customer was not supported by the evidence, and that Smith was entitled to hire plus interest. She found that Smith breached the charter by sub-chartering the barge without written permission; however, she concluded that the the dramatic rate increase was unreasonable and Cashman was only entitled to the $2,200 per day. Cashman was entitled to $81,888.04, plus interest and attorney’s fees for its of charter claim. The Court reduced Cashman’s claim for attorney’s fees by about one-third, to $41,000.00.

Calculation of the final damage award came down to timing. Cashman owed Smith the money for its charter longer than Smith had owed its amount. Consequently, once interest was taken into consideration, Smith only owed Cashman about $8,000 rather than the $2,500,000.00 that Cashman initially claimed it was owed. Cashman has appealed.