[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
_______________________ ELEVENTH CIRCUIT
JUNE 29, 2011
No. 09-15467 JOHN LEY
CLERK
_______________________
D.C. Docket No. 06-00332-CV-3-MCR-EMT
HATT 65, LLC, FRANK W. BOYKIN, II,
Family Trust,
Plaintiffs-Appellants,
versus
TERRY KREITZBERG, S/V “ESCAPE”,
in rem, GREAT LAKES REINSURANCE
(UK) PLC,
Defendants-Appellees,
BANK OF PENSACOLA,
Defendants.
____________________
Appeal from the United States District Court
for the Northern District of Florida
____________________
(June 29, 2011)
Before TJOFLAT, WILSON and RIPPLE,* Circuit Judges.
PER CURIAM:
The plaintiffs, Hatt 65, LLC and the Frank W. Boykin, II, Family Trust (“the
Trust”), brought this action against the defendants Terry Kreitzberg and the S/V
ESCAPE for damages sustained by the fishing yacht, the WEJ, during Hurricane
Dennis.1 After a four-day bench trial, the district court entered judgment for the
defendants, and the plaintiffs timely appealed.2
*
Honorable Kenneth F. Ripple, United States Circuit Judge for the Seventh Circuit,
sitting by designation.
1
Hatt 65, LLC is the owner of the injured craft, the WEJ; the Frank W. Boykin, II,
Family Trust is an Alabama trust that owned the real property, dock, boat lifts, equipment and
improvements located on the same property as the WEJ; and Frank W. Boykin II is the sole
beneficial owner of the Boykin Trust, as well as the principal of Hatt 65.
The case initially included a claim against Hatt 65’s insurer, Great Lakes Reinsurance
(UK) PLC; however, the parties settled that claim, which was then dismissed with prejudice by
the court.
Prior to trial, the district court also dismissed the plaintiffs’ claim for loss of market value
to the WEJ. Because we affirm the district court’s judgment for Mr. Kreitzberg, we do not
address the merits of this claim.
2
The district court had subject matter jurisdiction over this claim in admiralty. See U.S.
Const. art III, § 2; 28 U.S.C. § 1331(1). We have jurisdiction over the final judgment of the
district court pursuant to 28 U.S.C. § 1291.
2
I
BACKGROUND
A.
The district court rested its judgment on the following factual findings. “On
July 8, 2005, the National Hurricane Center (NHC) issued a hurricane watch that
included all areas along the coastline of the Gulf of Mexico”; “the watch was
upgraded to a hurricane warning, indicating that hurricane force conditions were
expected within 24 hours or less.” Hatt 65, LLC v. Kreitzberg, No. 3:06cv332,
2009 WL 3163220, at *2 (N.D. Fla. Sept. 30, 2009). The NHC forecasted the
expected path of the storm to pass west of Gulf Breeze, Florida, and to make
landfall at Mobile Bay, Alabama. This track “would have resulted in winds hitting
the Gulf Breeze area from the south and west.” Id. Had Hurricane Dennis
followed its anticipated path, “the waters along the protected northern shores of
Gulf Breeze would have experienced little wave action . . . because of the
protection afforded by the peninsula’s land mass.” Id. Finally, if the storm had
taken its projected path, “the greater fetch[3] of the wind blowing north across
Pensacola Bay would have driven the biggest waves and destruction away from
3
“‘[F]etch’ means the distance across water that wind blows unimpeded. The greater the
fetch, the greater the wind and wave forces.” Hatt 65, LLC v. Kreitzberg, No. 3:06cv332, 2009
WL 3163220, at *2 n.6 (N.D. Fla. Sept. 30, 2009).
3
Gulf Breeze and toward Pensacola.” Id.
Mr. Kreitzberg was an “experienced mariner.” Id. at *4. He “had purchased
the Escape in March 2005 and kept it in a slip at the Pier One Marina, located just
north of the mouth of Hoffman Bayou,” in Gulf Breeze. Id. at *4. Mr. Kreitzberg
“began his hurricane preparations in May 2005.” Id. He first inquired of local
mariners about the best location to moor the ESCAPE during a hurricane;
specifically, he spoke to Wayne Wheatley, the owner of the Pier One Marina.
Wheatley described for Mr. Kreitzberg the placement and type of mooring that he
had used for his 42-foot catamaran, which had survived Hurricane Ivan the
previous year. Mr. Kreitzberg constructed a similar mooring out of concrete,
metal rebar and chain. In June 2005, Mr. Kreitzberg placed the mooring “in the
mud bottom outside the marina at the mouth of Hoffman Bayou.” Id.4 “He did not
obtain a permit for [his] mooring buoy.” Id.
Based on the anticipated path of Hurricane Dennis, Mr. Kreitzberg’s
“mooring appeared to be in a relatively protected spot.” Id. The ESCAPE’s “main
mast was too tall to pass under the Pensacola Bay Bridge,” and, consequently,
4
There was conflicting testimony regarding whether the bottom of Hoffman Bayou,
where Mr. Kreitzberg placed his mooring, was mud, mud mixed with sand or just sand; however,
the district court credited Mr. Kreitzberg’s testimony that, based on his own personal
observation, the bottom was mud. Hatt 65, 2009 WL 3163220, at *5 n.17.
4
Mr. Kreitzberg “could not take the Escape farther east.” Id. Moving the ESCAPE
to the west would have brought it closer to the projected path of the hurricane.
Mr. Kreitzberg therefore “attached the Escape to his concrete mooring using a
40-foot rope to make a 20-foot bridle with a rubber tire to absorb the shock.” Id.
The district court also credited Mr. Kreitzberg’s testimony that he set a Super Max
storm anchor--capable of holding 80,000 pounds (compared to the ESCAPE’s
48,800 pounds)--with snubber by dropping it and reversing the engines.5 Mr.
Kreitzberg “also attached a line to another nearby mooring as a backup.” Id.
On the morning of July 10, 2005, “Frank Boykin, who lives along the north
shore of Gulf Breeze on property overlooking Hoffman Bayou,” made his own
hurricane preparations with the help of Brian Finkbone, Mark Braxton and Dan
Green. Id. at *3. “[E]xpecting the storm to make landfall to the west, they moved
the WEJ, Boykin’s 1990 65-foot Hatteras convertible sport fisherman vessel, “out
from its ordinary slip at the dock and turned it to face east.” Id. “They deployed
two anchors. . . . A number of mooring lines of new heavy nylon were tied from
the WEJ to freestanding pilings on both sides of the WEJ, the dock behind the
WEJ, and a tree on shore.” Id.
5
Mr. Kreitzberg took other precautions with respect to the sails and masts; the adequacy
of these actions do not appear to be disputed.
5
“Boykin’s house faces north toward Hoffman Bayou”; it overlooks the dock
and the vessels, “which are clearly visible from inside the house.” Id. Early in the
storm, Boykin and his friends
were able to see across the bayou and into Pensacola Bay from inside
the Boykin residence. Finkbone and Braxton had noticed two
sailboats out in the bay that appeared to be drifting. At approximately
9:00 in the morning, Finkbone took a photograph which shows one
large sailboat, the Escape, and one smaller sailboat. They appear in
the photograph to be close together, and Braxton said that he
observed them hit each other. The photograph was taken with a zoom
lens at a distance of approximately 150 yards. Finkbone testified that
the larger sailboat had moved 200 yards or so since early morning but
that he did not actually see it dragging from its mooring because that
would be difficult to detect. Finkbone last saw the Escape in the bay
at 11:30 a.m.; after that, it was nowhere in sight.
Id. (footnote omitted).
Boykin estimated that, at 9:00 a.m., the wind was around 25 mph; however,
at 9:00 a.m., the Pensacola Naval Air Station measured the wind speed at 31 mph,
with gusts of up to 46 mph, blowing out of the north/northeast. One of
Mr. Kreitzberg’s experts, Dr. Lee Branscome, “testified that the winds would have
been higher where the Escape was moored because of the wind direction and the
fetch.” Id. at *3 n.10. By 10:00 a.m., the Naval Air Station was registering a wind
speed of 32 mph with gusts of 48 mph.
Earlier that morning, the 4:00 a.m. NHC forecast projected “the storm to
6
make landfall near Mobile Bay to the west” of Gulf Breeze. Id. at *2. “At the last
minute, however, the storm’s actual path unexpectedly took the eye of the storm
east of Gulf Breeze.” Id. This alteration in course “drove the strongest winds
from the western part of the eyewall across Pensacola Bay and toward Gulf
Breeze, rotating in from the north and then the northwest.” Id.6 “As the storm
came on shore in early afternoon, visibility in the bayou was limited.” Id. at *3.
“At 1:45 p.m. . . ., the winds from the north area were approaching hurricane force
in the Gulf Breeze area.” Id. at *2. “[B]etween 2:00 and 2:30 p.m., there were
times when the people inside the Boykin residence could not see the WEJ due to
whiteout conditions caused by severe wind and rain.” Id. at *3. Coupled with the
wind and driving rain, there was a storm surge of up to five feet and three-foot
waves along the northern edge of Gulf Breeze, including Hoffman Bayou.
“[A]t 2:27 in the afternoon, the center of the eye of Hurricane Dennis made
landfall . . . eight miles east of Gulf Breeze,” farther east than originally predicted.
Id. at *1 (footnote omitted). The sustained winds, “blowing from the northwest
across Pensacola Bay toward Gulf Breeze and straight into Hoffman Bayou, were
85 to 90 mph, with peak gusts of 105 mph.” Id. at *2.
6
The district court found that, “[b]y the time it was evident that the storm would pass to
the east of Gulf Breeze, bringing the strongest winds from the north and northwest, it was too late
for Kreitzberg to alter his plans.” Hatt 65, 2009 WL 3163220, at *4.
7
“When the storm let up, the WEJ was gone. Boykin and friends went
outside in search of it and found the WEJ beached on a spit of neighboring land
protruding into Hoffman Bayou and due east of where the WEJ had been moored.”
Id. at *3. “Boykin believed that the Escape had allided with the WEJ by crossing
its anchor line, pulling the WEJ from its mooring, and that the mast and spreader
of the Escape had made contact with the outrigger antenna on the WEJ.” Id.
Other witnesses confirmed Boykin’s theory that the ESCAPE had allided with the
WEJ during the storm. Specifically, the ESCAPE likely passed over the WEJ’s
anchor line, causing the vessels to come into contact on the port side of the WEJ.
Mr. Kreitzberg presented the testimony of a meteorologist, Dr. Branscome,
and an expert in seamanship, Thomas Danti. Dr. Branscome testified that the
change in the course of the storm created wind and sea conditions in the Gulf
Breeze area that were worse than had been anticipated. Danti testified that
Mr. Kreitzberg’s “actions in preparing the Escape for the storm constituted
reasonable seamanship under the circumstances.” Id. at *5. Notably, he testified
that “[t]he concrete mooring itself and the method Kreitzberg used to connect it to
the vessel w[ere] ‘totally acceptable.’” Id.
8
B.
In rendering its judgment, the district court first observed that “[s]everal
well-established principles . . . govern the determination of liability and fault in
admiralty cases.” Id. at *6. First among these was the Louisiana rule, which
“creates a rebuttable presumption that[,] where a drifting vessel has allided with a
stationary vessel or object, the drifting vessel is at fault.” Id. (citing The
Louisiana, 70 U.S. (3 Wall.) 164, 18 L. Ed. 85 (1865)). Thus, the “threshold
question” was “whether there was an allision between the Escape and the moored
WEJ.” Id. The court found “by a preponderance of the evidence that an allision
[had] occurred between a drifting vessel, the Escape, and a stationary object, the
anchor line of the WEJ.” Id. at *7. Consequently, Mr. Kreitzberg was presumed
to be at fault unless he was able to rebut the presumption.
The court then explained that
[t]he owner of the drifting vessel may rebut the presumption of
fault that arises under the Louisiana rule by a preponderance of
evidence in support of one of the following defenses: (1) “that the
allision was the fault of the stationary object;” (2) “that the moving
vessel acted with reasonable care;” or (3) “that the allision was an
unavoidable accident.”
Id. (quoting Fischer v. S/Y NERAIDA, 508 F.3d 586, 593 (11th Cir. 2007)). The
court determined that two of the available defenses had been established. First,
9
Mr. Kreitzberg had acted with reasonable care in securing the ESCAPE. The
district court noted that Mr. Kreitzberg’s expert had testified that his “preparations
were reasonable and ‘textbook.’” Id. at *8. The plaintiffs did not present any
contrary expert testimony but “responded only that Kreitzberg’s negligence was
obvious because witnesses had observed the Escape dragging its mooring early in
the morning of July 10th, well before the storm was raging.” Id. The district court
determined that, because Mr. Kreitzberg successfully had rebutted the
presumption of the Louisiana rule, an assertion of res ipsa loquitur was
insufficient to carry the day: “The court will not impose another inference based
solely upon the fact that [Mr.] Kreitzberg’s preparations, though reasonable,
ultimately failed to prevent the accident, especially in the absence of conflicting
expert testimony.” Id.
The district court noted that, because it had determined that the defendants
had satisfied one of the possible defenses, it did not need to reach the other
possible defense--that the accident was unavoidable due to Hurricane Dennis.
However, it concluded that, if it had reached this question, it would have
determined that the accident was unavoidable because, through the reasonable
efforts of its owner, the ESCAPE had been moored in a good location to weather
the expected storm, a location that turned out to be “the worst possible spot” when
10
the storm took an unexpected turn. Id. at *9.
The district court next concluded that the Pennsylvania rule, see The
Pennsylvania, 86 U.S. (19 Wall.) 125, 136, 22 L. Ed. 148, 151 (1873), which
“shifts the burden of proof” to the vessel “in violation of a statutory rule intended
to prevent accidents,” Hatt 65, 2009 WL 3163220, at *10 (quotation marks
omitted), did not provide a basis for liability. The plaintiffs had maintained that
Mr. Kreitzberg’s failure to obtain a permit for his mooring constituted such a
violation and therefore placed on Mr. Kreitzberg the burden of establishing that
the violation “could not have been a contributory cause of the allision.” Id.
(quotation marks omitted). The district court disagreed that the Pennsylvania rule
was applicable because the plaintiffs had not demonstrated that this permit was
intended to prevent accidents of the type involved in this case. The district court
therefore entered judgment on behalf of the defendants.
II
DISCUSSION
A.
On appeal, the plaintiffs first argue that the district court erred in concluding
that Mr. Kreitzberg had rebutted the presumption of fault created by the Louisiana
11
rule. The plaintiffs agree that the district court correctly stated the applicable rule:
When a vessel, moving or drifting due to an external force, such as the current or
the wind, allides with a stationary object, the moving vessel is presumptively at
fault. See The Louisiana, 70 U.S. (3 Wall.) 164, 173, 18 L. Ed. 85, 88 (1865).
The plaintiffs also acknowledge that this rule creates a presumption that the
moving vessel was negligent, but permits that presumption to be rebutted if the
defendant can demonstrate that the moving vessel acted with reasonable care. See
Fischer v. S/Y NERAIDA, 508 F.3d 586, 593 (11th Cir. 2007) (“[I]f a ship’s
owner acted reasonably in preparing for a storm, the owner is not liable even if the
ship eventually causes damage to another’s property.”). “The standard for
reasonableness is that of prudent men familiar with the ways and vagaries of the
sea.” Petition of the United States, 425 F.2d 991, 995 (5th Cir. 1970).7 Whether
an individual exercised the necessary care in a given scenario is a factual finding,
which, on appeal, is reviewed only for clear error. See Fischer, 508 F.3d at 596-97
(reviewing district court’s determination that reasonable steps were taken for
“clear error”). “[A] finding is ‘clearly erroneous’ when although there is evidence
to support it, the reviewing court on the entire evidence is left with the definite and
7
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all cases of the Court of Appeals for the Fifth Circuit handed down
prior to October 1, 1981.
12
firm conviction that a mistake has been committed.” Anderson v. City of
Bessemer City, 470 U.S. 564, 573, 105 S. Ct. 1504, 1511, 84 L. Ed. 2d 518, 528
(1985) (quotation marks omitted).
The plaintiffs maintain that the district court clearly erred in concluding that
Mr. Kreitzberg’s preparations were reasonable. At trial, Mr. Kreitzberg testified
as to his preparation for the hurricane, including the construction and placement of
his mooring. He also testified that, when he checked the position of the ESCAPE
three times on the morning of July 10 between approximately nine and twelve,
“[e]verything looked fine.” R.228 101; see id. at 100-02. Mr. Kreitzberg’s
seamanship expert testified that the concrete mooring itself “was suited for its
purpose,” that the method Mr. Kreitzberg used to connect the mooring to the
vessel was “totally acceptable” and that Mr. Kreitzberg’s placement of the
mooring constituted “reasonable seamanship actions.” R.227 at 141, 144, 151.
The plaintiffs, however, insist that the district court should not have been
persuaded by this evidence in light of the testimony of eye-witnesses that the
ESCAPE was dragging its moorings in sustained winds of only 25 to 35 mph.
Specifically, in their opening brief to this court, the plaintiffs asserted that, “[a]t
approximately 8:30 to 9:00 a.m., about six hours prior to the storm making
landfall, Messrs. Finkbone and Braxton observed, and testified to, the ESCAPE
13
dragging more than 200 yards from her initial and intended mooring to the west
while in the lee of Highway 98.” Appellants’ Br. 9. In support of this statement,
the plaintiffs refer the court to two places in the record. The first reference is to
Finkbone’s testimony, which states: “Well, basically we thought it interesting that
a boat that we observed at 7:00 or 7:30 out there that was moored had moved
significantly, 200 yards or so . . . .” R.225 at 44. During cross-examination,
however, when confronted with his deposition testimony, Finkbone admits that he
previously had testified that he did not “actually see it [the mooring] dragging at
any time before [he] took the pictures” and that he “could not tell” whether it was
dragging “before, during, or after the taking of these pictures.” Id. at 73
(quotation marks omitted).
The second reference does not speak at all to the distance the ESCAPE
allegedly had dragged its mooring; instead, it is Braxton’s description of the
collision of the ESCAPE with a smaller sailboat in the “late morning, 10:30, 11
o’clock,” R.226 at 17; he states: “The larger sailboat was further to the north than
the east. And this was just right before they were going to hit together. The boat
drug down and the stern of the sailboat hit the bow of the small sailboat, damaging
it, breaking its lines, and then the small sailboat drifted off. We watched that
happen.” Id.
14
Contrary to the plaintiffs’ assertion, the district court did not ignore this
testimony, but simply declined to give it controlling weight. Neither Finkbone nor
Braxton could state affirmatively that, before they lost sight of the ESCAPE at
11:30 a.m., it was dragging its moorings “more than 200 yards” or in sustained
winds of only 25 to 35 mph. The district court, which observed the witnesses at
trial, noted this uncertainty in its findings of fact: “Finkbone testified that . . . he
did not actually see it dragging from its mooring because that would be difficult to
detect.” Hatt 65, 2009 WL 3163220, at *3. The district court was in the best
position to observe the witnesses and to gauge the relative weight to afford their
testimony. See In re Chalik, 748 F.2d 616, 619 (11th Cir. 1984) (stating that “the
trial judge is best able to assess the credibility of the witnesses before him and thus
the evidentiary content of their testimony”). After doing so, the district court
found Mr. Kreitzberg’s testimony, coupled with the opinion of his expert, more
persuasive than the plaintiffs’ witnesses. A trial court’s decision to credit the
plausible testimony of one witness over another, “each of whom has told a
coherent and facially plausible story that is not contradicted by extrinsic evidence,
. . . can virtually never be clear error.” Anderson, 470 U.S. at 575, 105 S. Ct. at
15
1512, 84 L. Ed. at 529-30.8
B.
The plaintiffs next contend that, because the ESCAPE was in violation of a
Florida statute and regulation at the time it allided with the WEJ, the district court
should have placed the burden on the ESCAPE to show that the violation was not
the cause of the allision, as required by the Pennsylvania rule. See The
Pennsylvania, 86 U.S. (19 Wall.) at 136, 22 L. Ed. at 151. Specifically, the
plaintiffs maintain that “Florida law clearly states that markers, such as the one
attached to Kreitzberg’s homemade mooring, must be permitted by divisions of the
state commission and the U.S. Coast Guard.” Appellants’ Br. 29. Because
Mr. Kreitzberg did not obtain a permit, he was in violation of Florida law.
Consequently, the plaintiffs believe that he was presumptively at fault for the
8
In their brief, the plaintiffs also fault the district court for failing to credit the testimony
of a fact witness, Dale Hickman, “that the consistency of the bottom, where he picked [up] the
mooring . . . was hardpan sand, not mud.” Appellants’ Br. 20. Again, however, the court was
not required to credit the testimony of Hickman over the testimony of Mr. Kreitzberg with
respect to the geological make-up of the surface bottom where Mr. Kreitzberg set his mooring.
Compare R.226 at 117 (Hickman testifying that it took “no effort” to get Mr. Kreitzberg’s
mooring buoy up), with R.228 at 118-21 (Mr. Kreitzberg testifying that, based on his own
observations, the area where he placed his mooring buoy had a mud bottom).
Because we have determined that the district court did not clearly err in determining that
Mr. Kreitzberg had acted reasonably in securing his vessel, we need not determine whether the
district court was correct in determining that the accident was unavoidable.
16
allision.9
Mr. Kreitzberg maintains, however, that the plaintiffs failed to establish the
prerequisites for invoking the Pennsylvania rule. He argues that the party relying
on the rule must establish a “violation of a statutory rule that is in effect at that
time and that is intended to prevent allisions or accidents.” Appellees’ Br. 27.
The district court agreed:
[T]he rules cited by Hatt 65 require a permit for the placement [of]
mooring buoys and markers and reference navigational safety in
general. However, there is no indication, either in the rules or statutes
cited by Hatt 65, or in any testimony provided, of the purpose of the
permit requirement, aside from general references to navigational
safety which seem to apply to the markers. The fact that there was no
clearly marked or permitted mooring buoy was not the cause of the
accident here.
9
The plaintiffs’ current argument has altered somewhat from that made to the district
court. Before the district court, the plaintiffs argued that the permitting requirements, to which
Mr. Kreitzberg was subject, required that “[a]ll mooring buoys must be attached to the waterbody
bottom using anchors, sinkers, chain, shackles, swivels, and must be equipped with pennants,
that are of sufficient size, strength, and holding power for their intended purpose.” R.191 at 4-5
(quotation marks omitted) (emphasis added by plaintiffs). In the plaintiffs’ view, the reason for
this rule is “to prevent vessels to attempt to utilize moorings that are inadequate for their
intended purpose, and thus to preclude the inevitable allision/collision of the drifting vessel in
high winds or a low category hurricane.” Id. at 5. The district court concluded, however, that the
regulation on which the plaintiffs relied was not in effect until 2006--after Hurricane Dennis.
With respect to those permit regulations that were in effect, the district court noted that “there is
no indication, either in the rules or statutes . . . or in any testimony provided, of the purpose of
the permit requirement, aside from general references to navigational safety which seem to apply
to the markers. The fact that there was no clearly marked or permitted mooring buoy was not the
cause of the accident here.” Hatt 65, 2009 WL 3163220, at *10.
Before us, the plaintiffs do not maintain that the district court was incorrect in its
determination that the specific mooring requirements were not incorporated into the Florida
regulations until after Hurricane Dennis.
17
Hatt 65, 2009 WL 3163220, at *10.
The facts of The Pennsylvania, 86 U.S. (19 Wall.) 125, 22 L. Ed. 148
(1874), shed some light on how the rule should be applied. In The Pennsylvania, a
steamship, going at undue speed in heavy fog, collided with a bark. The ship’s
lookout had seen the bark from a distance of approximately three to four hundred
yards, which was insufficient time to avoid the collision. The bark, however, had
failed to blow her foghorn, as required by the rules of navigation, to alert other
vessels that she was approaching. The Court concluded that the bark was at fault
and then turned to the question of
whether the fault contributed to the collision, whether in any degree it
was the cause of the vessels coming into a dangerous position. It
must be conceded that if it clearly appears the fault could have had
nothing to do with the disaster, it may be dismissed from
consideration. The liability for damages is upon the ship or ships
whose fault caused the injury. But when, as in this case, a ship at the
time of a collision is in actual violation of a statutory rule intended to
prevent collisions, it is no more than a reasonable presumption that
the fault, if not the sole cause, was at least a contributory cause of the
disaster. In such a case the burden rests upon the ship of showing not
merely that her fault might not have been one of the causes, or that it
probably was not, but that it could not have been.
The Pennsylvania, 86 U.S. (19 Wall.) at 136, 22 L. Ed. at 151 (emphasis added).
In The Pennsylvania, the navigational rule that was violated--the
requirement to alert oncoming vessels by foghorn--was designed to prevent the
18
type of accident--a collision in the fog--that actually occurred. The former Fifth
Circuit recognized that, in order for the presumption of The Pennsylvania to apply,
there must be some relationship between the navigational rule violated and the
harm that occurred: “Appellants would have us give birth to a rule, that every
vessel guilty of a statutory fault has the burden of establishing that its fault could
not, by any stretch of the imagination, have had a causal relation to the collision,
no matter how speculative, improbable or remote. The Pennsylvania does not go
that far . . . .” China Union Lines, Ltd. v. A. O. Andersen & Co., 364 F.2d 769,
782 (5th Cir. 1966); see also Parker Towing Co. v. Yazoo River Towing, Inc., 794
F.2d 591, 594 (11th Cir. 1986) (“When both vessels involved in the allision are
operating in violation of statutes designed to prevent such mishaps, the rule
requires ‘the district court to find that the statutory fault of both vessels
contributed to the accident’” (quoting Otto Candies, Inc. v. MV Madeline D, 721
F.2d 1034, 1036 (5th Cir. 1983) (emphasis added)). Thus, the burden is on the
party invoking the Pennsylvania rule to demonstrate by a preponderance of the
evidence that the other vessel was in violation of a statute intended to prevent the
type of accident that occurred here--an allision. See Skidmore v. Grueninger, 506
F.2d 716, 722 (5th Cir. 1975) (“It seems clear that in order for a plaintiff to be
within The Pennsylvania rule, he must demonstrate by a preponderance of the
19
evidence that a statutory violation has occurred.”); see also Folkstone Maritime,
Ltd. v CSX Corp., 64 F.3d 1037, 1047 (7th Cir. 1995) (“For the Pennsylvania Rule
to apply, three elements must exist: (1) proof by a preponderance of evidence of
violation of a statute or regulation that imposes a mandatory duty; (2) the statute or
regulation must involve marine safety or navigation; and (3) the injury suffered
must be of a nature that the statute or regulation was intended to prevent.”).
We do not believe that the plaintiffs have met their burden of establishing
that the ESCAPE was in violation of a statute or regulation intended to prevent
allisions at the time it came into contact with the WEJ. The plaintiffs invite our
attention to section 327.40 of the Florida Statutes10 and section 68d-23.102 of the
10
The version of section 327.40 of Title XXIV of the Florida Statutes in effect at the
time of Hurricane Dennis provided as follows:
327.40. Uniform waterway markers for safety and navigation; informational markers
(1) Waterways in Florida which need marking for safety or navigation purposes
shall be marked under the United States Aids to Navigation System, 33 C.F.R.
part 62. Until December 31, 2003, channel markers and obstruction markers
conforming to the Uniform State Waterway Marking System, 33 C.F.R. subpart
66.10, may continue to be used on waters of this state that are not navigable
waters of the United States.
(2)(a) Application for marking inland lakes and state waters and any navigable
waters under concurrent jurisdiction of the Coast Guard and the division shall be
made to the division, accompanied by a map locating the approximate placement
of markers, a list of the markers to be placed, a statement of the specification of
the markers, a statement of the purpose of marking, and the names of persons
responsible for the placement and upkeep of such markers. The division will
assist the applicant to secure the proper permission from the Coast Guard where
(continued...)
20
Florida Administrative Code.11 These provisions concern the permitting of
10
(...continued)
required, make such investigations as needed, and issue a permit. The division
shall furnish the applicant with the information concerning the system adopted
and the rules existing for placing and maintaining the markers. The division shall
keep records of all approvals given and counsel with individuals, counties,
municipalities, motorboat clubs, or other groups desiring to mark waterways for
safety and navigation purposes in Florida.
(b) 1. No person or municipality, county, or other governmental entity shall place
any safety or navigation markers in, on, or over the waters or shores of the state
without a permit from the division.
2. The placement of informational markers, including, but not limited to, markers
indicating end of boat ramp, no swimming, swimming area, lake name, trash
receptacle, public health notice, or underwater hazard and canal, regulatory,
emergency, and special event markers, by counties, municipalities, or other
governmental entities on inland lakes and their associated canals are exempt from
permitting under this section. Such markers, excluding swimming area and
special event markers, may be no more than 50 feet from the normal shoreline.
(c) The commission is authorized to adopt rules pursuant to chapter 120 to
implement this section.
(3) The placement of any safety or navigation marker or any informational
marker under subparagraph (2)(b)2. on state submerged lands under this section
does not subject such lands to the lease requirements of chapter 253.
2005 Fla. Laws 217.
11
Florida Administrative Code rule 68D-23.102, which is located in the chapter
dedicated to “Uniform Waterway Markers in Florida Waters,” provided:
68D-23.102. Scope.
The provisions of this chapter prescribe the procedures by which the Division
permits and regulates the placement of markers in, on, and over the waters of this
state and the shores thereof. This chapter also provides for the design,
construction, characteristics and coloring of all markers placed in, on, and over the
waters of this state and the shores thereof by adopting by reference the United
States Aids to Navigation System, Part 62 of Title 33 of the Code of Federal
(continued...)
21
navigational markers to ensure the uniform use of markers over the waters of the
State. Nothing in the statute or regulation suggests that these provisions are
designed to prevent allisions, much less allisions due to the improper construction
or placement of mooring buoys. Indeed, they are silent as to the placement, size,
construction or use of mooring buoys. Moreover, the plaintiffs have not pointed to
any statutory language, or to any administrative or judicial construction of the
statute or regulation, that suggests the purpose of these provisions is to prevent
allisions generally or to prevent allisions due to inadequate mooring buoys.
Nevertheless, the plaintiffs argue that this court’s decision in Orange Beach
Water, Sewer & Fire Protection Authority v. M/V Alva, 680 F.2d 1374 (11th Cir.
1982), requires that we conclude that Mr. Kreitzberg’s failure to obtain a permit
triggers application of the Pennsylvania rule. There are, however, several crucial
differences between Orange Beach and the facts of the present case.
In Orange Beach, the plaintiff had sought and obtained a permit from the
Army Corps of Engineers for the construction of a submarine water pipeline
through the Gulf Intracoastal Waterway near Mobile, Alabama. The permit
11
(...continued)
Regulations.
Fla. Admin. Code. R. 68D-23.102 (2005).
22
detailed the location, size and clearance of the pipeline. It also required “[t]hat
there shall be no unreasonable interference with navigation by the existence” of
the pipeline and that signs “facing in each navigational direction” should provide a
warning of the pipeline crossing to vessels on the waterway. Id. at 1377
(quotation marks omitted). After the building of the pipeline, erosion occurred,
causing “the pipeline [to] become exposed at the points where it originally
descended on both the north and the south banks.” Id. Moreover, the warning
signs were not displayed as required. An unidentified vessel allided with the
pipeline as it was attempting to navigate around a tug and barges, which were
moored near the pipeline on the opposite side of the waterway. We determined
that Orange Beach was negligent by failing to comply with the requirements of the
permit and that its negligence contributed to the damage caused by the allision.
We noted that 33 U.S.C. § 40312 prohibits the obstruction to the navigable waters
12
33 U.S.C. § 403 is entitled “Obstruction of navigable waters generally; wharves; piers,
etc.; excavations and filling in” and provides:
The creation of any obstruction not affirmatively authorized by Congress, to the
navigable capacity of any of the waters of the United States is prohibited; and it
shall not be lawful to build or commence the building of any wharf, pier, dolphin,
boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead,
haven, harbor, canal, navigable river, or other water of the United States, outside
established harbor lines, or where no harbor lines have been established, except on
plans recommended by the Chief of Engineers and authorized by the Secretary of
the Army; and it shall not be lawful to excavate or fill, or in any manner to alter or
modify the course, location, condition, or capacity of, any port, roadstead, haven,
(continued...)
23
of the United States unless affirmatively authorized by Congress. Although the
plaintiff had obtained a permit for its pipeline, the duty imposed by § 403 “is
breached where a structure not initially an obstruction to navigation becomes one
because of improper maintenance.” Id. at 1383. We then concluded:
The condition of the pipeline on March 29, 1979 clearly
constituted an “unreasonable” obstruction to navigation. It is
undisputed that vessels with nine foot drafts regularly traveled this
portion of the Waterway. Witnesses for both parties testified that
empty tows were often required to travel well outside the dredged
channel, close to the banks, when passing loaded vessels. The
pipeline was struck well into the Waterway, at the depth of 8 to 9 feet,
which would correspond to the draft of a tug or a loaded tow. All this
happened while Orange Beach was well aware of the potential
consequences of failing to maintain the pipeline. Indeed, the injury
which occurred was the most obvious consequence.
Id. (emphasis added). We then observed that “[t]he failure to comply with a
permit issued by the Corps triggers the application of the rule of The
Pennsylvania.” Id.
The mere recitation of the facts in Orange Beach should make the
distinctions between it and the present case obvious. Orange Beach involved the
violation of 33 U.S.C. § 403, which prohibits the obstruction of navigable
12
(...continued)
harbor, canal, lake, harbor or refuge, or inclosure within the limits of any
breakwater, or of the channel of any navigable water of the United States, unless
the work has been recommended by the Chief of Engineers and authorized by the
Secretary of the Army prior to beginning the same.
24
waterways absent authorization, and the mishap that occurred “was the most
obvious consequence” of noncompliance. Here, by contrast, there is no clear
connection between the statute (or regulation) and the harm that occurred.
Furthermore, the permit at issue in Orange Beach detailed every aspect of how the
pipeline was supposed to be constructed and maintained; it also explicitly required
that the pipeline not unreasonably interfere with navigation. Here, no evidence
was offered at all as to what the permitting process entailed, including whether the
mooring buoy at issue would meet any requirements set by the State. In sum,
Orange Beach does nothing to help plaintiffs establish the prerequisites for
invoking the Pennsylvania rule.13
13
We do not believe that Sunderland Marine Mutual Insurance Co. v. Weeks Marine
Construction Co., 338 F.3d 1276 (11th Cir. 2003), suggests a contrary result. In Sunderland, a
tug boat had allided with an unlit barge, which “had used a mooring buoy to anchor . . . in open
water, outside Edmont Key’s channel.” Id. at 1277. The court found that the barge had “violated
four safety statutes regarding location, light and sound”; one of these statutes was 33 U.S.C. §
403, which provided that “[a] vessel may not be placed in navigable waters unless a permit is
obtained.” Id. at 1279. The violations of these statutes, we determined, were sufficient to invoke
the Pennsylvania rule and to place the burden on the stationary barge to show that its actions
“could not have been a contributory cause of the allision.” Id.
As with Orange Beach Water, Sewer & Fire Protection Authority v. M/V Alva, the
plaintiffs analogize the mooring permit that Mr. Kreitzberg failed to obtain with the permit
requirement of § 403. Because the violation of § 403 was a sufficient basis for application of the
Pennsylvania rule, the plaintiffs maintain, so should be the permitting requirement under Florida
law. As noted in our previous discussion of Orange Beach, however, by its plain language, § 403
is aimed at preventing “obstruction[s]” of navigable waterways that could cause allisions of the
very kind that occurred in Sunderland. The plaintiffs failed to come forward with any evidence
as to the purpose of the permitting requirement at issue here. Consequently, they did not meet
their burden of establishing that the statute or regulation was aimed at preventing allisions.
25
The plaintiffs have not established by a preponderance of the evidence that
the ESCAPE was in violation of a statute or regulation intended to prevent
allisions. Consequently, the district court did not err when it declined to invoke
the Pennsylvania rule.14
Conclusion
The judgment of the district court is affirmed.
AFFIRMED
14
Because we affirm the district court’s judgment with respect to liability, we need not
reach the plaintiffs’ contentions regarding the appropriate measure of damages.
26