American Dredging Co. v. Lambert

United States Court of Appeals,

Eleventh Circuit.

No. 94-4583.

AMERICAN DREDGING COMPANY, as owner of the tug Marco Island, her
engines, tackle, appurtenances, in a cause of exoneration from or
limitation of liability in the matter of:, Plaintiff-Counter-
Defendant-Appellant,

v.

Jose LAMBERT, as Personal Representative of the Estate of
Alejandro Lambert, Kim Pietruszka, as Personal Representative of
the Estate of Donald R. Pietruszka and Individually, Mario Perez,
as Personal Representative of the Estate of Vivian Perez, Juan
Renteria, Defendants-Counter-Claimants-Appellees,

Zacharia S. Gispan, Defendant-Counter-Claimant.

April 19, 1996.

Appeal from the United States District Court for the Southern
District of Florida. (No. 92-340-CIV), Edward B. Davis, Judge.

Before KRAVITCH, ANDERSON and BARKETT, Circuit Judges.

BARKETT, Circuit Judge:

American Dredging Company appeals from an adverse summary

judgment denying its petition for exoneration from or limitation of

liability for a nighttime collision involving one of its floating

dredge pipelines and a motorboat carrying four passengers, three of

whom died as a result of the collision. American Dredging also

appeals from the district court's denial of its motion for partial

summary judgment to preclude the decedents' representatives from

recovering non-pecuniary damages in their wrongful death actions.

We affirm the grant of final summary judgment as to liability,

and in light of the Supreme Court's recent ruling in Yamaha Motor

Corporation, U.S.A. v. Calhoun, --- U.S. ----, 116 S.Ct. 619, 133

L.Ed.2d 578 (1996), we affirm the district court's ruling that
American Dredging potentially is liable to the representatives for

non-pecuniary damages.

I. Background

The collision giving rise to this action occurred in the early

morning of November 23, 1991, in territorial waters adjacent to the

Port of Miami. At approximately 2:30 a.m., Juan Renteria, Donald
1
Pietruszka, Vivian Perez, and Alejandro Lambert boarded a

motorboat, which Lambert navigated toward Fisherman's Channel,

where American Dredging was conducting a dredging operation. The

dredge the "American," located in the channel near the Port of

Miami, had approximately 1000 feet of dredge pipeline, supported by

floating pontoons, trailing behind it. The dredge pipeline had

flashing yellow lights on it, the number and location of which

failed to meet statutory requirements.

About thirty minutes before the collision, a large barge and

tug sought access to a dock at the Port of Miami, which the dredge

"American" and the dredge pipeline were blocking. To permit

access, American Dredging's tug the "Marco Island" divided the

dredge pipeline and moved one part away. The ends of the broken

pipeline did not have red lights on them, as required by statute.

With the dredge pipeline thus improperly illuminated, open,

and a segment of it extending from the dredge "American" to the tug

"Marco Island," the motorboat entered the channel. Lambert was

navigating the boat in an easterly direction at approximately 30

1
The defendants and counter-claimants in this action include
Juan Renteria, the only passenger who survived the collision, and
the personal representatives of the estates of decedents
Alejandro Lambert, Donald Pietruszka, and Vivian Perez.
m.p.h. when it struck the dredge pipeline. The motorboat broke

apart, throwing its four passengers into the water. The impact

seriously injured Renteria, and killed Pietruszka, Lambert, and

Perez.

American Dredging filed a petition in admiralty in the

district court under 46 U.S.C.App. § 183, for exoneration from

liability, contending that the collision was not a result of any

negligence on its part; and in the alternative, for limitation of

liability, contending that the collision occurred as a result of

negligent acts of which it had no knowledge.2 Renteria and the

personal representatives of the estates of Pietruszka, Lambert, and

Perez filed answers contesting American Dredging's right to

exoneration from or limitation of liability, and counterclaimed

seeking pecuniary and non-pecuniary damages resulting from American

Dredging's negligent operation of its vessels and equipment.

The district court granted the motion for summary judgment,

which Renteria and the personal representatives filed, finding that

American Dredging's negligence precluded both exoneration as well

as limitation of liability. The court also denied American

2
Section 183 provides in pertinent part:

The liability of the owner of any vessel ... for any
loss, damage, or injury by collision, or for any act,
matter or thing, loss, damage, or forfeiture, done,
occasioned, or incurred, without the privity or
knowledge of such owner or owners, shall not ... exceed
the amount or value of the interest of such owner in
such vessel, and her freight then pending.

46 U.S.C.App. § 183 (emphasis added). Pursuant to § 183,
American Dredging sought to limit its liability to an amount
equal to the value of its vessel involved in the accident,
$120,000.
Dredging's motion for partial summary judgment seeking to prevent

the personal representatives from recovering non-pecuniary damages.

II. Discussion

We review a grant of summary judgment de novo, applying the

same legal standards which bound the district court. Haves v. City

of Miami, 52 F.3d 918, 921 (11th Cir.1995). In admiralty, as in

all civil cases, we consider the evidence in the light most

favorable to the nonmoving party. Flores v. Carnival Cruise Lines,

47 F.3d 1120, 1122 (11th Cir.1995).

A. Exoneration and Limitation of Liability

A shipowner is entitled to exoneration from all liability for

a maritime collision only when it demonstrates that it is free from

any contributory fault. Tittle v. Aldacosta, 544 F.2d 752, 755

(5th Cir.1977). The determination of whether a shipowner is

entitled to limit liability, however, involves a two-step analysis

which this Court explained in Hercules Carriers, Inc. v. Claimant

State of Florida, 768 F.2d 1558 (11th Cir.1985):

First, the court must determine what acts of negligence or
conditions of unseaworthiness caused the accident. Second,
the court must determine whether the shipowner had knowledge
or privity of those same acts of negligence or conditions of
unseaworthiness.

Id. at 1563-64 (citation & quotation omitted).

In this case, the district court determined first that the

uncontroverted facts established that American Dredging violated

statutory regulations designed to prevent the type of accident

which occurred here. Among the cumulative evidence indicating

noncompliance with 33 C.F.R. § 88.15, the district court noted that

American Dredging had not placed red lights on the ends of the
newly divided dredge pipeline to indicate where vessels could pass,

and that it placed flashing yellow lights only every 100 feet along

the pipeline, instead of at 10-meter intervals as required under

the statute to warn vessels of the presence of a pipeline across a

navigable channel.

The court then found that American Dredging had failed to

produce evidence to show that its negligence could not have been

one of the causes of the accident. 3 When a ship is involved in a

collision and that ship is in violation of a statutory rule

designed to prevent collisions, the burden shifts to the shipowner

to prove that the violation was not a contributing cause of the

collision. See, Self v. Great Lakes Dredge & Dock Co., 832 F.2d

1540, 1554 (11th Cir.1987). Accordingly, the court found that

American Dredging was negligent as a matter of law, that its

negligence was a proximate cause of the accident, and that it was

not entitled to exoneration from liability.

Once a claimant satisfies the initial burden of proving

negligence or unseaworthiness, the burden of proof shifts to the

shipowner trying to limit liability to prove lack of privity or

knowledge. Hercules, 768 F.2d at 1564. "This burden is not met by

simply proving a lack of actual knowledge, for privity and

knowledge is established where the means of obtaining knowledge

exist, or where reasonable inspection would have led to the

3
While American Dredging argued that Lambert's operation of
the motorboat was the sole cause of the accident, the district
court never reached the issue of Lambert's potential negligence
because it found that American Dredging did not adequately
explain how its own negligence could not have been a contributing
cause of the accident.
requisite knowledge." Id. (citation omitted). Thus, while

knowledge may stem from an owner's personal participation in the

negligence, see Petition of M/V Sunshine, II, 808 F.2d 762, 763

(11th Cir.1987), it also may exist where the owner "could have and

should have obtained the information by reasonable inquiry or

inspection," Hercules, 768 F.2d at 1577. In addition, when the

shipowner is a corporation, privity or knowledge means the privity

or knowledge of a managing agent, officer, or supervisory employee.

Id. at 1574.

In this case, supervisory personnel had offices near the

dredging site and were on the site often. With respect to this

second step, the district court found that American Dredging could

not carry its burden of showing that it had no privity or knowledge

of the negligence. After reviewing the record, we agree, and

accordingly, we affirm the grant of summary judgment denying

American Dredging's petition for exoneration from or limitation of

liability.

B. Non-pecuniary Damages

We now turn to the question of whether personal

representatives may recover non-pecuniary damages in wrongful death

actions involving non-seamen killed in territorial waters. The law

governing the availability of non-pecuniary damages in admiralty

actions has a long and convoluted history. However, in Yamaha

Motor Corporation, U.S.A. v. Calhoun, --- U.S. ----, 116 S.Ct. 619,

133 L.Ed.2d 578 (1996), the Supreme Court has recently resolved the

question presented in this appeal. In this case, the personal

representatives sued for non-pecuniary damages under both federal
maritime law and Florida state law. American Dredging took the

position that prior caselaw provided for a uniform federal scheme

that applied to all deaths governed by admiralty law and that

displaced state non-pecuniary damages laws in actions involving

non-seamen killed in territorial waters. That position has now

been rejected by the Supreme Court in Yamaha. There, the Court

held that, when the claimants are not seamen or longshore workers,

federal maritime law does not displace state wrongful death and

survival statutes permitting non-pecuniary damages in wrongful

death actions arising out of accidents in territorial waters and

that state remedies remain applicable in such cases. Because,

under Calhoun, no federal statute or common law precedent precludes

the personal representatives from recovering non-pecuniary damages

under Florida law, we affirm the denial of partial summary judgment

on the issue of the recoverability of non-pecuniary damages.

III. Conclusion

We AFFIRM the district court's grant of summary judgment to

Renteria and the personal representatives on the issue of

liability, and we AFFIRM the denial of partial summary judgment on

the issue of the recoverability of non-pecuniary damages.