In In re TK Boat Rentals(1) Judge Sarah Vance assumed that passengers aboard a charter fishing vessel were within the 'zone of danger', but still dismissed their claims based on insufficient evidence of injury.


A charter fishing vessel collided with a crew boat owned by TK Boat Rentals in the Mississippi River. Both vessels filed for limitation of liability. Six passengers on the fishing vessel filed claims for personal injuries, mental anguish and emotional distress. The vessel interests sought summary judgment on two of the passengers' claims.

The court first granted summary judgment on the issue of unseaworthiness, since none of the passengers were Jones Act seafarers assigned to work aboard the vessel, citing Dove v Belcher Oil Co.(2) The court then evaluated whether the two passengers of interest had presented sufficient evidence of an actual injury to sustain a claim for maritime negligence.

The plaintiffs argued that they were entitled to recover damages for emotional distress despite the absence of physical injuries because they were in the 'zone of danger' of the collision. The zone of danger rule permits a plaintiff to seek recovery for emotional injuries that "result from the witnessing of peril or harm to another if the plaintiff is also threatened with physical harm as a consequence of the defendant's negligence".(3)


The court assumed without deciding that the zone of danger rule applied to the plaintiffs' claims under the general maritime law. Further, it assumed that they were within the zone of danger. In so doing, the court noted that the Fifth Circuit has yet to recognise recovery under the zone of danger rule for general maritime claims, citing Barker v Hercules Offshore Inc.(4) The court then explained that the zone of danger rule is merely a threshold requirement to determine whether a plaintiff is eligible to recover for emotional injuries. The plaintiff must also demonstrate that he or she suffered actual injuries. The court concluded that both plaintiffs had failed to present sufficient evidence to create a genuine issue of disputed fact as to an injury and dismissed their claims.

One plaintiff acknowledged that he:

  • suffered no personal injuries from the collision;
  • had not and did not plan to seek medical or psychological treatment; and
  • could not identify anything that he could do before the accident that he was now unable to do.

He also admitted he had been back on the water since the accident. While he said being back on the water "was a little tense", he provided no further explanation. The court considered the statements in his deposition and affidavit to be vague, conclusory and insufficient to establish that he suffered emotionally as a result of the casualty. Even drawing all inferences in his favour, the court found that the record taken could not lead a rational trier of fact to find that he had experienced compensable emotional injuries.

A second plaintiff argued that he had suffered physical injury and emotional damages as well, but he did not describe these injuries and pointed to no specific facts in the record to support his assertions. Although the plaintiff testified at deposition that he had jumped into the river at the time of the collision and the water was very cold, he did not feel that he needed to go to the hospital. He did not seek medical or psychological treatment as a result of the accident. The only psychological effect he felt from the accident occurred on a subsequent snorkelling trip when he jumped off the back of the boat into the water and then turned around and got back on the boat. He explained that he had never been afraid of the water before and did not know whether the experience was the result of fear of the water or just the fact that the accident was fresh. The plaintiff did not suggest that he continued to be fearful of the water or that he ever had another such experience. He admitted to going fishing after the incident without problems. Again, the court found that without more evidence of a specific physical or emotional injury, the jury could not reasonably find that the second plaintiff was entitled to relief.

According to the court, mere presence in the zone of danger, without more, is insufficient to support a claim for purely emotional injuries under the general maritime law. In short, if you want the court to believe that you have genuine, compensable, emotional injuries, see a medical professional.

For further information please contact please contact Todd G Crawford at Fowler Rodriguez by telephone (+1 228 822 9340) or email ( The Fowler Rodriguez website can be accessed at


(1) 2018 US Dist LEXIS 46313 (March 21 2018).

(2) 686 F2d 329, 332 (5th Cir 1982).

(3) 2018 US Dist LEXIS 46313, *10-11, citing Plaisance v Texaco Inc, 966 F2d, 166, 168 (5th Cir 1992); see also Naquin v Elevating Boats LLC, 744 F3d 927, 938 (5th Cir 2014) (explaining that "the zone of danger test allows a Jones Act plaintiff to recover for emotional injury caused by fear of physical injury to himself.") (internal quotation omitted) (emphasis in original)).

(4) 713 F3d 208, 224 (5th Cir 2013).

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