Liss v. Spiegel

ORDER DENYING REHEARING

THIS CAUSE duly came before the Court on Plaintiffs’ Motion for Rehearing directed to this Court’s Order Granting Motion for Summary Judgment, dated January 25, 1990.

This was a difficult case when the Court entered summary judgment *189on January 25, 1990 in favor of Defendant, the Estate of Sheldon Spiegel. It is even more difficult now that Plaintiffs’ attorney has brought a number of cases to the Court’s attention which were not previously cited. Those cases as analyzed in Plaintiffs’ excellent memorandum, advance the propositions that a master is liable for the acts of his servant; or which deal with respondent superior; or which request that a distinction be made between pleasure and commercial charters.

This Court does not make law; its function is to follow and/or interpret law. The Court has read and re-read Gele v Chevron Oil Co., 574 F.2d 243 (1978), and it appears to be most directly in point and dispositive of this case. The Court is obligated to follow it. As stated in Gele:

The District Court exonerated B. A. Wilson, the boat’s owner. Wilson, however, is held only to a standard of “reasonable care under the circumstances”
* * *
... we believe in this case B. A. Wilson met the reasonable care standard. He was not aboard the TIKI TOO at the time of the collision, and no equipment on the boat malfunctioned which might have contributed to the accident. Neither did Wilson place the vessel at the disposal of inexperienced boat operators. Thus, we affirm the District Court’s holding that Wilson is free of personal liability.

To the same effect is Armour v Gradler, 448 F.Supp. 741 (1978). There, the injured party Armour sought to affix liability for a boating mishap on Mrs. Gradler as the co-owner of the vessel with her husband. Mr. Gradler was operating the boat during a storm, with Armour as a passenger, and a large piece of debris caused the boat to sink. Mrs. Armour was not on the boat at the time of the mishap. However, Mrs. Gradler was aware that during stormy days such as the one in question, debris was frequently encountered in the lake. Said that Court:

We find no reason to consider whether Mrs. Gradler may as co-owner of the KAMAI reap the benefits of the Limitation Act. A discussion of the imputation of a co-owner’s negligence would be relevant if a viable claim remained under the Jones Act or under the seaworthiness doctrine. However, the mere maritime negligence of Donald Gradler cannot be imputed to his wife simply because she is a co-owner. Nor has plaintiff made any independent claim of negligence against Mrs. Gradler. Mrs. Gradler was not on board the KAMAI at the time of the mishap. Testimony at trial showed that she had no knowledge of any existing hull deficiencies which made *190the KAMAI unfit for its intended use. Having concluded that Mrs. Gradler is free from any liability for the injuries and death of Roger Armour, she has no need to employ § 183.

Accordingly, based on the materials before this Court, Plaintiffs’ Motion for Rehearing is denied.

DONE AND ORDERED in Chambers at Miami, Dade County, Florida, this 9th day of March, 1990.