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Court sanctions Maersk's counsel in wrongful death case for misrepresenting availability of witness

This case arose from a tragic accident on the Houston Ship Channel when a recreational boater encountered the wake of the MAERSK IDAHO. The driver fell from the boat and drowned. His family filed a wrongful death lawsuit against MAERSK. After a six-day bench trial in Galveston federal court, the court ruled in favor of Maersk.

In a tough 51-page decision, the court found that the widow and children failed to prove their negligence claim against Maersk. So the widow and children recovered no damages from Maersk.

The court held the plaintiffs failed to prove that the MAERSK IDAHO maintained an unsafe speed, produced a dangerously sized wake, or failed to maintain a proper lookout in violation of 33 C.F.R. § 164.11 or Rules 5 or 6 of the Inland Navigation Rules.

Notably, after trial, the widow and children moved for sanctions against Maersk for (1) misrepresenting to the court the availability of the ship pilot to testify on the fourth day of trial; and (2) for failing to timely produce during discovery a video the ship pilot took of the MAERSK IDAHO’s wake in the Houston Ship Channel.

With respect to No. 1, the plaintiffs rested their case-in-chief during the morning of the fourth day of trial. The defendants informed the court that they had no witnesses available that afternoon, but they could commence the presentation of their defense the next morning. However, it was later revealed during the cross examination of the ship pilot, that he was in Galveston and available to testify. Instead, he spent the afternoon at a hotel four blocks from the courthouse “being woodshedded” by one of the defense lawyers. The court was not pleased and stated:

I'm a pretty accommodating guy. It could be that, if you had said that, that I would have said that's fine. We could have talked. It could have been that plaintiffs’ counsel would have agreed to it. Instead, I was left with the impression that there was nobody available and we were just stuck; and on an afternoon that I was planning on being in trial, we did nothing at all. You can understand that I'm a little upset about it?

With respect to No. 2, the ship pilot revealed on cross examination that on a voyage subsequent to the one at issue, he had taken a video of the MAERSK IDAHO’s wake in the Houston Ship Channel. Counsel for the plaintiffs were unaware of the video before the ship pilot testified at trial and asked the court to exclude the video from evidence. The court granted the plaintiffs’ request and prohibited the video’s use in any way by the defense.

Under Rule 37, the plaintiffs asked the court to take their contention that the MAERSK IDAHO’s wake was 5-8 feet when the recreational boat encountered it be taken as true; that the court disregard the testimony of the ship pilot regarding the wake height of the MAERSK IDAHO; and that the court adversely infer that the video recording of the MAERSK IDAHO’s wake was harmful to the defendants’ case.

While the court declined to grant the plaintiffs the requested relief, it determined that the delay caused by the defendants’ misrepresentation of the ship pilot’s availability to testify on the fourth day of trial warranted sanctions. The court granted the following sanctions against Maersk: not awarding any taxable court costs to Maersk and forced Maersk to reimburse the plaintiffs for their portion of the cost of the trial transcript.

A publicly available link to the decision can be accessed here:

Please feel free to contact me at or (504) 553-1435 if you have any questions or would like to discuss.


Adam Davis


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