Wilson Elser

New Orleans LA

More than 800 attorneys strong, our firm serves clients of all sizes, across multiple industries and around the world. Wilson Elser has 37 strategically located offices in the United States and another in London. This depth and scale has made us one of the nation’s most influential law firms, ranked in the Am Law 200 and top 53 in the National Law Journal 500.

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Updates

Shipping & Transport

Post-accident practices
USA | 05 May 2021

In the aftermath of an incident, there are many factors to consider and actions which must be taken. This can include evidence collection and preservation, accident reconstruction, preparing for litigation and developing pre-accident emergency response protocols and document retention programmes. There must also be consideration for when it is the right time to engage outside counsel and experts and the creation and maintenance of privilege.

Marine casualty responses
USA | 28 April 2021

​Maritime law covers a broad range of matters – from marine insurance, ships and cargo to casualties at sea and environmental claims by federal and state governments and individuals. When an incident at sea or in port raises legal issues, a company must have in place a well-coordinated and tested casualty response and investigation plan adapted to its specific needs.

New York legislation regulating use of e-bicycles and e-scooters
USA | 03 March 2021

As of November 2020, e-scooters are legal in New York City. The use of e-scooters and e-bicycles in the state of New York is subject to various safety measures, including the requirement to wear a helmet, lower speed limits and provisions addressing use while intoxicated. Still, the budget provision is considered a major win for those who advocate for New York's working poor.

Final phase of NTSB investigations
USA | 17 February 2021

The National Transportation Safety Board (NTSB) investigates aviation, railroad, highway, marine and pipeline accidents to determine their probable cause and issues safety recommendations to reduce the risk of future accidents. This article considers the final phase of NTSB investigations, as well as the options available to interested parties thereafter.

Analytic phase of NTSB investigations
USA | 10 February 2021

The National Transportation Safety Board (NTSB) investigates aviation, railroad, highway, marine and pipeline accidents to determine their probable cause and issues safety recommendations to reduce the risk of future accidents. This article considers the analytic phase of NTSB investigations, which follows the factual phase.

Factual phase of NTSB investigations
USA | 03 February 2021

The National Transportation Safety Board (NTSB) investigates aviation, railroad, highway, marine and pipeline accidents to determine their probable cause and issues safety recommendations to reduce the risk of future accidents. This article outlines the NTSB's investigation process within the initial 30 days following an incident.

Anticipating NTSB investigations – how best to prepare
USA | 27 January 2021

The National Transportation Safety Board (NTSB) investigates aviation, railroad, highway, marine and pipeline accidents to determine their probable cause and issues safety recommendations to reduce the risk of future accidents. This article provides companies with an overview of how they can best prepare for NTSB investigations into transport accidents.

Congress confirms that Jones Act applies to offshore wind farm activities
USA | 20 January 2021

The US wind energy sector has been growing, with a substantial focus on offshore wind farm development. One significant factor in such developments is the regulatory requirements applicable to vessels involved in the construction and maintenance of the offshore wind farm structures. Until recently, a significant question remained unresolved: whether the Jones Act coastwise trade requirements apply to vessels involved in wind farm construction.

Overview of National Transportation Safety Board investigations
USA | 07 October 2020

The National Transportation Safety Board (NTSB) investigates aviation, railroad, highway, marine and pipeline accidents to determine their probable cause and issues safety recommendations to reduce the risk of future accidents. It is critical that companies carefully navigate their activities with the NTSB during the first 24 to 48 hours after an incident. That is not the time to learn about how the NTSB conducts accident investigations. This article provides companies with an overview of NTSB investigations.

COVID-19: symptoms felt across trucking industry
USA | 12 August 2020

The true impact of the COVID-19 crisis on commercial transport has been felt from the onset of the pandemic; however, the gravity of that impact has manifested itself across borders and even on a local level. This article provides a general overview of the changes that have occurred in light of the recent health crisis and the continued efforts that the trucking industry is implementing to respond appropriately.

USCG guidelines in response to COVID-19 pandemic
USA | 29 April 2020

In response to the COVID-19 pandemic, the United States Coast Guard has released a series of marine safety information bulletins to keep the marine industry informed and provide guidance for the continued safe operation of the maritime transportation system. The bulletins detail key maritime issues associated with the COVID-19 pandemic, including reporting requirements for illness or death, vessel inspections, exams, documentation and federal drug testing requirements.

Fifth Circuit confirms Dorion test for maritime contracts
USA | 19 February 2020

The US Fifth Circuit Court of Appeals recently confirmed the Dorion test for determining whether a contract is a maritime contract and extended the test to all mixed service contracts. Whether a contract is 'maritime' is a vital distinction for anyone operating in the maritime or offshore industries in the United States, as it can have far-reaching implications with respect to governing law, risk allocation and the enforceability of contractual indemnity provisions.

Supreme Court precludes punitive damages for unseaworthiness claims
USA | 03 July 2019

In a landmark decision, the Supreme Court has precluded the recovery of punitive damages for unseaworthiness claims. This decision conclusively resolves a long-running split between federal appellate courts and settles a source of uncertainty in the US maritime industry. With this question resolved, vessel owners and maritime employers are better positioned to assess their exposure for personal injuries and can now arrange the necessary insurance coverages to manage the risks.

New Jersey Supreme Court signals potential sea change in scope of damages in auto accident cases
USA | 15 May 2019

New Jersey's 'no-fault' automobile insurance scheme has been the subject of repeated reforms over the past 40 years. It aims to strike an appropriate balance between providing accident victims with prompt compensation for accident-related losses and reducing insurance costs for the motoring public at large. In a recent decision with potentially far-reaching implications, the New Jersey Supreme Court rejected the validity of an entire category of damages in motor vehicle accident suits.

Duck boat owners avoid seeking limitation, ducking potential exposure to punitive damages
USA | 08 May 2019

Whether a party should seek to apply general maritime law to an incident is not always obvious and the consequences can be even less apparent. Following a 2015 collision by a Ride the Ducks vehicle into a tour bus in Seattle, which killed five and injured more than 60 people, the jurors awarded $123 million to the plaintiffs and split liability between the duck boat owner and the company that had refurbished the World War II-era vehicle. Interestingly, the owners did not file a limitation action.

Supreme Court to decide availability of punitive damages for seafarer's unseaworthiness claim
USA | 24 April 2019

The Supreme Court will soon decide whether a Jones Act seafarer can recover punitive damages in a personal injury suit based on a vessel's unseaworthiness. The court recently heard oral arguments in The Dutra Group v Batterton, which has teed up the issue that will resolve a split among the circuit courts and provide clarity on the availability of punitive damages for seafarers in general maritime law causes of action. It is unclear how the court will rule on this long-contested issue.

Pre-trip inspections: are you doing enough?
USA | 20 February 2019

Serious or fatal accidents involving tractor trailers or other commercial vehicles often arise in part from a maintenance defect in the vehicle. When this occurs and the matter proceeds to litigation, counsel for the plaintiff will shine a bright spotlight on the pre-trip inspection that was or should have been performed by the driver. This article addresses three key liability issues that commercial vehicle owners and operators should consider in their practices, policies and procedures pertaining to pre-trip inspections.

Exculpatory clauses in towage contracts: limiting exposure in light of Bisso doctrine
USA | 12 December 2018

In Bisso v Inland Waterways Corp the Supreme Court held that clauses in towage contracts that release the tug owner from all liability from its own negligence are invalid as they contravene public policy. Since then, the courts have struggled with the extent to which Bisso precludes exculpatory clauses in towage contracts. However, Bisso has been widely criticised and the courts have circumvented it by creating various exceptions.

Appeals court allows recovery of punitive damages for unseaworthiness claim
USA | 14 February 2018

The Ninth Circuit recently held that punitive damages are available to seafarers who sustain injuries from unseaworthy conditions under the general maritime law. In doing so, it rejected a previous Fifth Circuit decision. The decision appears to suggest that if an owner knows of the unseaworthiness but does nothing, it is immune from punitive damages; yet, if an owner knows nothing, it may still be subject to punitive damages if the unseaworthy condition is sufficiently egregious in the opinion of the court.

Maritime attachment permissible to obtain security for foreign arbitration, but only as adjunct to obtaining jurisdiction
USA | 06 December 2017

The US Court of Appeals for the Eleventh Circuit recently reinforced the availability of a maritime attachment as a means of obtaining security for a foreign arbitration. However, in so doing, the court highlighted that a maritime attachment must include an element of obtaining jurisdiction and may not be used solely to obtain security from a party already subject to the court's jurisdiction.

Oil Pollution Act permits recovery in contribution for purely economic damages
USA | 30 August 2017

The US Court of Appeals for the Fifth Circuit recently ruled that the responsible party for an oil spill may obtain contribution for purely economic damages from another tortfeasor under the Oil Pollution Act 1990 irrespective of the general maritime law's economic loss rule. This decision provides some comfort to statutorily designated responsible parties that are held strictly liable in the first instance for significant costs relating to clean-up, remediation and third-party damages resulting from an oil spill.

Modified application of Jones Act coastwise trade requirements proposed
USA | 05 April 2017

Over the years, a number of US Customs and Border Control (CBP) rulings have addressed the ability of foreign-flagged vessels to conduct certain activities relating to the offshore energy industry. CBP recently issued a notice of proposed modifications and revocations of its prior letter rulings relating to these activities, which would require them to be conducted by qualified vessels with coastwise endorsements under the Jones Act regulations.

Courts continue to deny fuel suppliers' lien claims in ongoing OW Bunker litigation
USA | 14 September 2016

US courts continue to rule against physical fuel suppliers in the ongoing saga following the financial collapse of OW Bunker & Trading A/S. Separate courts in three leading maritime judicial circuits recently ruled that physical bunker suppliers contracted by OW Bunker to provide fuel to vessels were not entitled to maritime liens against the vessels. More decisions on this issue are expected at both the district and appellate court levels.

Court denies maritime lien to fuel supplier following OW Bunker collapse
USA | 06 April 2016

The collapse of OW Bunker A/S and its worldwide subsidiaries left a multitude of creditors seeking other methods of collecting payment for fuel ordered on credit by OW Bunker and delivered to numerous vessels. The US District Court for the Eastern District of Louisiana recently ruled that a fuel supplier that had contracted with OW Bunker to provide fuel to a vessel was not entitled to a maritime lien against this vessel.

The pitfalls of post-incident paperwork
USA | 25 November 2015

When an accident occurs on a vessel, an investigation is necessary to determine what happened, how it happened and how it can be prevented from happening in the future. A company can create a safer workplace while reducing its claim exposure by developing a plan to ensure that the documents generated during the investigative process are helpful in preventing a future accident while preserving its ability to defend a claim against an injured party.

The government has a plan for responding to your oil spill – do you?
USA | 07 October 2015

Oil spills are a risk regardless of how safe and well trained your crew is. The federal government has developed a plan for responding to spill incidents and it is important to have a company plan that provides a response procedure that allows the government to be notified, manages the company's response to the incident and allows the government and the company to work together to minimise the effect of the spill.

Planning ahead to use act of God as legal defence
USA | 08 July 2015

Shipping companies attempt to minimise risk in a number of ways. However, despite best attempts to minimise exposure, 'acts of God' may occur that are beyond their control and that could cause damage for which they may be responsible. Nevertheless, some advance planning and an analysis of hurricane procedures could protect shipping companies from future liability.

Punitive damages available in unseaworthiness claims
USA | 25 April 2012

The US District Court for the Eastern District of Missouri recently held that punitive damages are available under general maritime law in unseaworthiness actions. The court followed a recent Supreme Court ruling which stated that the common-law tradition of punitive damages extends to maritime claims unless Congress has enacted a federal statute restricting its application.

Trying in rem and in personam claims together
USA | 08 June 2011

The US Court of Appeals for the Fifth Circuit has affirmed a district court order holding that in rem claims asserted under admiralty jurisdiction filed in the same complaint as in personam claims asserted in diversity must be tried together before a jury when the plaintiff clearly expresses its intent that the in personam claims be premised on diversity jurisdiction rather than in admiralty.

Failure to report can make vessels moving targets for prosecution
USA | 30 March 2011

The Court of Appeals for the Sixth Circuit recently held that a violation of the Ports and Waterways Safety Act − failure to report immediately a hazardous condition to the nearest Coast Guard office − is a continuing offence and venue is proper in any district in which such offence began, continued or is completed.