[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
____________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-10661 NOVEMBER 19, 2007
_____________ THOMAS K. KAHN
CLERK
D.C. Docket No. 04-CV-81131-CV-KLR
DAVID T. FISCHER, individually,
Plaintiff-Appellant,
ALFRED J. FISHER,
Intervenor-Plaintiff-Appellant,
versus
S/Y NERAIDA, her engines, tackle, rigging,
dinghies, equipment, appurtenances, furniture, etc., in rem,
NERAIDA CO., L.P., a Michigan Limited Partnership,
PETER SIAVRAKAS, in personam
Defendants-Intervenor-
Defendants-Appellees.
______________
Appeal from the United States District Court
for the Southern District of Florida
_____________
(November 19, 2007)
Before TJOFLAT, HULL and BOWMAN,* Circuit Judges.
TJOFLAT, Circuit Judge:
*
Honorable Pasco Bowman, II, United States Circuit Judge for the Eighth Circuit, sitting
by designation
This case arose from an allision between an unmanned pleasure yacht and a
dock when Hurricane Frances hit south Florida in early September of 2004.1 The
district court found that the yacht-owner exercised reasonable care in preparing for
the storm and accordingly exonerated him and his boat from liability. The dock
owner now appeals. Because the district court applied the proper standard of care
and correctly allocated the burden of proof, and because its factual determinations
are not clearly erroneous, we affirm the court’s judgment.
I.
A.
The S/Y Neraida is a sailing yacht, a ketch. It was anchored in Lake Worth
in Palm Beach during the early morning hours of September 5, 2004, when
Hurricane Frances made landfall on the southeast coast of Florida. By mid-
morning, the Neraida had drifted eastward across the lake and come to rest,
leaning against a dock owned by David Fischer; the dock suffered substantial
damage as a result of the impact.
The Neraida was beneficially owned by Peter Siavrakas, a Michigan
businessman and yachting enthusiast, through his 98 percent interest as the general
1
An allision occurs when a moving vessel strikes a stationary object such as a dock. A
collision occurs when a moving vessel strikes another moving vessel.
2
partner in Neraida Co., L.P., a Limited Partnership, the Neraida’s title owner.
Siavrakas purchased the yacht in 1997 and until late 2000 had operated it as a
charter vessel in the Caribbean. The Taiwanese-built Neraida measured over 65
feet bow to stern with a draft of 7 feet, 8 inches,2 a mast height of 80 feet, and a
displacement of approximately 75,000 pounds.
Siavrakas and his family lived during most of the year in Michigan and,
prior to 2001, would periodically travel to the Caribbean to use the Neraida for
pleasure sailing. In 2001, the charter business dried up, and Siavrakas, his family,
and a small crew sailed the Neraida from the Caribbean north to Rhode Island, and
back south to Palm Beach, Florida.
When Siavrakas arrived in Palm Beach, he searched for a place permanently
to anchor the Neraida and settled on Lake Worth, where he found many other
boats moored. A nearby marina, the Rybovich, Spencer Marina, accommodated
the Neraida’s dinghy, which Siavrakas used to go out to the Neraida anchored in
the lake. When the Neraida was not being used, the dinghy remained docked at
the marina.
2
The draft is the average vertical distance between the waterline and the bottom of the
boat’s hull.
3
Between late-2001 and September 2004, Siavrakas continued to travel
periodically from Michigan to Florida to sail in the Neraida for weeks or months at
a time. While Siavrakas was in Michigan, he arranged to have a friend in Palm
Beach, Gregory Afthinos, act as a caretaker for the Neraida. Afthinos, an engineer
trained in the Greek Royal Navy and merchant marine academy, had worked
previously aboard ocean-faring freighters and cruisers. On several occasions, he
sailed with Siavrakas and his family aboard the Neraida. Once the yacht was
moored in Lake Worth, Afthinos’s task was to check on it weekly, to inspect it for
vandalism and wear-and-tear. He last checked on the yacht approximately a week
before Hurricane Frances struck.
Sometime during 2002, Siavrakas decided to sell the Neraida. One
interested buyer was Steven Cienkowski, a licensed captain in Palm Beach who
wanted to put the yacht back into the charter business. Cienkowski owned three
smaller boats, two that he used to take passengers out on fishing and SCUBA
diving trips, and a third single-mast sailboat. Siavrakas and Cienkowski never
made a deal for the sale or lease of the Neraida, but the two kept in touch over
their shared interest in sailing.
4
Siavrakas first became aware of Hurricane Frances, then designated a
tropical storm,3 on August 26, 2004. On the following day, when Frances was
designated a hurricane, it was still some 2000 miles off the coast of Florida. A
large and slow-moving system, the storm lumbered its way west and then north
through the Caribbean over the next several days. A hurricane watch was first
issued on September 1, for the entire Atlantic coast of Florida between Flagler
Beach in the north and Florida City in the south. The National Hurricane Center
first issued a hurricane warning on September 2, once again covering the entire
east coast of the state.4
While Frances was gaining strength in the Caribbean, Siavrakas was not in
Florida; he had not been there since June 2004. Consequently, he did not
personally carry out the preparations for the hurricane. Siavrakas contacted
Afthinos and Cienkowski, instead, on Wednesday, September 1, and instructed
them to prepare the Neraida for the storm by setting a second anchor and removing
the sails. Siavrakas had decided by then to keep the yacht in Lake Worth instead
3
The National Hurricane Center’s classification scheme designates as tropical storms
those systems with maximum sustained wind speeds between 39 and 73 miles per hour;
hurricanes are storm systems with sustained wind speeds of at least 74 miles per hour.
4
A hurricane watch is an advisory issued by the National Hurricane Center indicating that
hurricane conditions are possible within the following 36 hours. A hurricane warning indicates
that a hurricane is expected within the following 24 hours.
5
of moving it to a different location for the storm. Afthinos and Cienkowski agreed
to meet by the yacht to make the preparations on Thursday, September 2, but due
to scheduling conflicts, Cienkowski wound up going out to the Neraida alone, on
the evening of Friday, September 3.
Once aboard the yacht, Cienkowski first ensured that the sails were tied and
secured to the masts. He did not remove the sails because heavy winds had
already reached the area. He dropped the yacht’s secondary anchor; the main
anchor had already been lowered and set. The main anchor was a 110-pound
Coastal Quick Release (“CQR”) design favored by many sailors for boats of
comparable size. Attached to the yacht by a 120-foot-long chain, the anchor had
the ability to set itself – i.e., dig a firm hold into the ground – when the yacht
begins to move. The secondary anchor was also a CQR design; it weighed about
65 pounds and was attached to a 30-foot chain and 30-foot nylon rope. In
preparing the Neraida, Cienkowski spent a total of thirty minutes on board.
The eye of Frances finally made landfall during the early morning of
September 5, some forty miles north from where the Neraida was anchored,
though the area around Palm Beach had been experiencing tropical storm–force
winds since earlier in the night on September 4. Given the larger-than-average
size of the storm system, this forty-mile distance put the Neraida directly in the eye
6
wall of the storm, where the winds are most intense. According to the
uncontroverted testimony of Siavrakas’s meteorology expert, Dr. Lee Branscome,
the area surrounding the Neraida experienced gusts of hurricane-force winds for
six to eight hours and sustained hurricane-force winds for about three hours during
the night of September 4.
By midday on September 5, when Cienkowski returned to the yacht’s
anchorage site, he saw that many of the other boats moored in the area had been
severely damaged during the night. The Neraida was found leaning against David
Fischer’s dock, which had been damaged from the impact. In addition to the
damage it sustained from alliding with the dock, the Neraida lost its main sail,
which had become unfurled during the storm and mostly destroyed by the wind.
The mizzen, located rearward, was unfurled but had not been raised or torn. Two
additional sails remained covered up and furled during the storm.
B.
David Fischer brought this action in the District Court for the Southern
District of Florida on December 9, 2004. He sued the Neraida in rem and
Siavrakas and the Neraida Co., L.P. in personam.5 We refer to the defendants
5
Alfred Fisher, a neighbor of David Fischer, obtained leave of court to intervene as a
plaintiff. He alleged that the Neraida had also damaged his dock during the storm before it came
to rest against Fischer’s dock. The parties have postponed litigating Alfred Fisher’s claims
7
collectively as “Siavrakas.” The gist of Fischer’s complaint is that Siavrakas is
liable for the damage to Fischer’s dock for negligently failing to secure the
Neraida prior to the hurricane. In a separate action, Neraida Co., L.P. sued for
exoneration or limitation of liability to the value of the Neraida. See 46 U.S.C. §
30505. The district court, sitting in admiralty, 28 U.S.C. § 1333, consolidated the
two actions and held a two-day bench trial on the issue of liability alone.
At trial, the testimony consisted predominately of the opinions of both
sides’ expert witnesses. Thomas Correll, Fischer’s expert and an inland marine
consultant, testified that several of Siavrakas’s acts and omissions in preparation
for the hurricane were unreasonable. Specifically, he testified that the sails should
have been removed instead of merely furled, that the second anchor should have
been set manually instead of being dropped overboard and allowed to self-set,6 and
that the Neraida should have been moved to a different location altogether. In
contrast, Siavrakas’s expert, Thomas Danti, testified that the primary purpose of
removing sails is to prevent them from getting damaged rather than to prevent a
pending the final disposition of the issue of liability in David Fischer’s case. Therefore, in this
appeal, David Fischer is the sole appellant.
6
An anchor “sets” when it digs into the sea bottom; a ship can set an anchor by moving
slightly after dropping the anchor. Correll acknowledged on cross-examination that the
Neraida’s secondary anchor, which Cienkowski dropped but did not manually set, can set itself if
the yacht moves during the storm.
8
vessel from moving, that additional anchors are often not helpful to a ship caught
in shifting storm winds, and that it was reasonable to leave the Neraida anchored
in Lake Worth.
The district court resolved the issue of liability in the findings of facts and
conclusions of law it handed down following the bench trial. In its conclusions of
law, the court held that Siavrakas bore the burden of proving that his actions in
securing the Neraida were reasonable. The court found that although Hurricane
Frances was an act of God, its force was not so severe that no amount of
precaution could have avoided the accident. Nonetheless, the court found that
because Siavrakas’s measures to secure the Neraida were reasonable, Siavrakas
was not liable for the damage to Fischer’s dock and was entitled to exoneration
under 46 U.S.C. § 30505. The court entered a partial final judgment for Siavrakas
pursuant to Federal Rule of Civil Procedure 54(b), and this appeal followed.
II.
We have jurisdiction to review the district court’s judgment. 28 U.S.C.
§ 1291. We review the court’s conclusions of law de novo. See United States v.
Kennedy, 201 F.3d 1324, 1329 (11th Cir. 2000). The district court’s findings of
fact – including determinations of the credibility of witnesses and weight of the
evidence – will not be set aside unless they are clearly erroneous. See Fed. R. Civ.
9
P. 52(a); Dresdner Bank AG v. M/V Olympia Voyager, 446 F.3d 1377, 1380–81
(11th Cir. 2006) (citing McAllister v. United States, 348 U.S. 19, 20, 75 S. Ct. 6,
8, 99 L. Ed. 20 (1954)). The court’s findings will stand as long as they are
supported by substantial evidence. See Thelma C. Raley, Inc. v. Kleppe, 867 F.2d
1326, 1328 (11th Cir. 1989). In “a case in which the evidence is largely
testimonial,” like this one, “the district court has the advantage of observing the
witnesses and evaluating their credibility firsthand,” and “the standard of review
imposes an especially heavy burden on an appellant.” Id.
Fischer raises four arguments in support of reversal. First, he submits that
the district erred by failing to shift the burden to Siavrakas to prove that his
actions in preparing the Neraida were reasonable. Second, he argues that the court
should have held Siavrakas liable when it found that Hurricane Frances was not so
severe as to make the accident inevitable.7 Third and finally, he argues that
Siavrakas’s preparations were not reasonable and that the district court made a
clear error when it decided otherwise.
A.
7
Fischer also challenges as clearly erroneous the court’s factual finding that Hurricane
Frances was an act of God. Given the distinction between the act of God doctrine and the
applicable standard of care, discussed infra, this question is not relevant to the disposition of the
appeal and will not be taken up in this opinion.
10
The first argument Fischer raises rests on but a single ambiguous sentence
in the district court’s conclusions of law. The court stated in the final section of
its conclusions that “[b]ecause Plaintiffs have failed to prove that Defendants were
negligent in their hurricane preparations with regard to the S/Y Neraida, they are
not entitled to recover.” Fischer submits that this statement meant that the district
court placed the burden of persuasion on the plaintiffs instead of the defendants as
required by the presumption articulated in The Louisiana, 70 U.S. (3 Wall.) 164,
18 L. Ed. 85 (1865). Id. at 173 (holding that the vessel must “show affirmatively”
that it is not liable); see also Bunge Corp. v. Freeport Marine Repair, Inc., 240
F.3d 919, 923 (11th Cir. 2001) (“When a moving ship strikes and damages a
stationary object, it is presumed that the moving ship is at fault.”).
Reading the conclusions of law in its entirety convinces us that the district
court correctly shifted the burden of proof to Siavrakas. Indeed, the court stated
that Siavrakas is “relieved from liability only if [he] can show that the damage
caused to [Fischer’s] dock[] could not have been prevented by the exercise of
reasonable care.” (emphasis added) However, once Siavrakas demonstrated to the
court’s satisfaction that his preparations were reasonable, the presumption that the
moving vessel was at fault was overcome. Because the court properly invoked the
presumption of the Louisiana Rule, we reject Fischer’s argument.
11
B.
In essence, Fischer’s second argument boils down to the proposition that the
Louisiana’s burden-shifting rule converts the liability standard in allision cases
from ordinary negligence into something much more demanding. This is
incorrect. The duty of care owed by a moving vessel to a stationary object is
reasonable care under the circumstances. Thus, if 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. Fischer conflates the applicable standard for
negligence with the act of God doctrine. The act of God defense is a distinct
argument that rebuts causation by establishing a superceding cause of the accident.
Defendants in allision cases need not, of course, prove a superceding cause in
order to disprove negligence.
1.
Liability in collision and allision cases has always been apportioned based
on fault. See 2 Thomas J. Schoenbaum, Admiralty and Maritime Law 89 (4th ed.
2004). In practice, however, evidence of fault is often in the exclusive control of
the defendant in a collision action. See Bunge Corp. v. Freeport Marine Repair,
Inc., 240 F.3d 919, 923 (11th Cir. 2001). Several judicial presumptions similar to
the doctrine of res ipsa loquitur have evolved to shift the burden of production and
12
persuasion to the defendant. See 2 Schoenbaum, supra, at 105 (analogizing to res
ipsa loquitur). Of present concern are two related doctrines most commonly
associated with The Louisiana, 70 U.S. (3 Wall.) 164, 18 L. Ed. 85 (1865), and
The Oregon, 158 U.S. 186, 15 S. Ct. 804, 39 L. Ed. 943 (1895). The Oregon Rule
states that when a vessel moving under its own power allides with a stationary
object, the moving vessel is presumptively at fault. See The Oregon, 158 U.S. at
197, 15 S. Ct. at 808. The Louisiana Rule is the same except that it applies to
vessels moving or drifting due to an external force, such as the current or the wind.
See The Louisiana, 70 U.S. (3 Wall.) at 173; Superior Const. Co. v. Brock, 445
F.3d 1334, 1339 n.10 (11th Cir. 2006) (comparing the two rules).
Applying either of these rules creates a presumption that the moving vessel
was negligent, but the presumption is rebuttable through any one of three ways.
The defendant can demonstrate: “[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.” Freeport Marine Repair, 240 F.3d at 923.
These three defenses might be analogized to the common law tort arguments of
contributory negligence, denial of negligence, and superceding causation,
respectively. Each independent argument, if sustained, is sufficient to defeat
liability. Siavrakas does not argue that Fischer was negligent in the construction
13
or placement of his dock; thus, the first defense is not applicable to the present
case. We accordingly turn to the second defense, which Siavrakas does raise,
namely that he exercised reasonable care in preparing the Neraida for the
hurricane.
The appropriate standard of care in this regime is based upon “(1) general
concepts of prudent seamanship and reasonable care; (2) statutory and regulatory
rules . . . ; and (3) recognized customs and usages.” 2 Schoenbaum, supra, at 90.
The case law has consistently embraced this standard. In The Louisiana, the
Supreme Court applied a fault-based test, and concluded that the facts of the case
required “no assumption or affectation of any very great nautical skill in this
court” to discern “defect[ive]” management of the Louisiana by her captain and
crew. 70 U.S. (3 Wall.) at 174. The Court found that the allision was caused by
the crew’s “want of judgment,” evidenced in part by the fact that “other persons of
nautical skill . . . found no difficulty in securing their vessels at the same place,
and under similar circumstances.” Id. In short, the Court concluded that the crew
was obviously negligent.
Collision cases decided subsequent to The Louisiana also understood the
standard of care in admiralty to be reasonable care under the circumstances, and
not a higher standard. See The Virginia Ehrman, 97 U.S. 309, 313, 24 L. Ed. 890
14
(1877) (ascribing liability when “the master or crew of both vessels are either
deficient in skill, omit to take due care, or are guilty of negligence”); The Clarita,
90 U.S. (23 Wall.) 1, 11, 23 L. Ed. 146 (1874) (stating that vessels are liable for
accidents due to the “negligence, want of care or skill on the part of those
employed in their navigation”). Particularly instructive is the The Grace Girdler,
in which the Supreme Court stated that “[t]he highest degree of caution that can be
used is not required” when a ship is “pursuing a lawful avocation in a lawful
manner,” and that “[i]t is enough that it is reasonable under the circumstances.”
74 U.S. (7 Wall.) 196, 203 19 L. Ed. 113 (1868).
Cases of more recent vintage are no less consistent in their adherence to a
reasonable-care standard. In Petition of the United States, 425 F.2d 991, 995 (5th
Cir. 1970),8 we stated that “[t]he test for determining whether [defendants] were
free from fault is whether they took reasonable precautions under the
circumstances as known or reasonably to be anticipated.” See also Superior
Const. Co. v. Brock, 445 F.3d 1334, 1339–40 (11th Cir. 2006); Hercules Carriers,
Inc. v. Claimant State of Fla., 768 F.2d 1558, 1564 & n.3 (11th Cir. 1985); S.C.
8
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court
adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to
the close of business on September 30, 1981.
15
Loveland, Inc. v. E. W. Towing, Inc., 608 F.2d 160, 166 (5th Cir. 1979); Bunge
Corp. v. M/V Furness Bridge, 558 F.2d 790, 802 (5th Cir. 1977); Stuart Cay
Marina v. M/V Special Delivery, 510 F. Supp. 2d 1063, 1072 (S.D. Fla. 2007).
Applied to the context of hurricane preparations, reasonable care amounts to
whether the owner “use[d] all reasonable means and took proper action to guard
against, prevent or mitigate the dangers posed by the hurricane.” Stuart Cay
Marina, 510 F. Supp. 2d at 1072. Although what “reasonable care” requires
changes with the circumstances, that standard recognizes the existence in every
case of something more that could be done – and perhaps would be legally
required under a “highest degree of caution” standard – but that reasonable care
does not demand.
Our sister circuits have also consistently applied the reasonable care
standard in allision and collision cases. In Weyerhaeuser Co. v. Atropos Island,
777 F.2d 1344 (9th Cir. 1985), the Ninth Circuit held that the standard of
reasonableness is no more stringent in the maritime context than in ordinary tort.
Id. at 1348. Similarly, the Seventh Circuit opined that “negligence at sea does not
differ, in principle, from negligence ashore.” Rodi Yachts, Inc. v. Nat’l Marine,
Inc., 984 F.2d 880, 886 (7th Cir. 1993) (quoting Grant Gilmore & Charles L.
Black, Jr., The law of Admiralty § 7-11 (2d ed. 1975)); see also Stolt
16
Achievement, Ltd. v. Dredge B.E. Lindholm, 447 F.3d 360, 364 (5th Cir. 2006)
(“The applicable standards of care in a collision case stem from traditional
concepts of prudent seamanship and reasonable care . . . .”); Cliffs-Neddrill
Turnkey Int’l-Oranjestad v. M/T Rich Duke, 947 F.2d 83, 91 (3d Cir. 1991); Tug
Ocean Prince, Inc. v. United States, 584 F.2d 1151, 1156 (2d Cir. 1978); United
States v. The Washington, 241 F.2d 819, 824 (4th Cir. 1957). We find no
authority and discern no reason now to impose upon defendants in allision cases a
higher standard of care than ordinary reasonableness.
2.
Fischer points us to prior cases in which we have referred to the burden
facing a defendant seeking to overcome the Louisiana Rule’s presumption of fault
as “heavy” or “strong.” See, e.g., Freeport Marine Repair, 240 F.3d at 923. This
language, Fischer argues, must mean that the defendant needs to prove that it did
more than what is merely reasonable in order to avoid liability. These adjectives
connote no such higher standard of conduct. Rather, they simply mean that the
Louisiana and Oregon Rules’ presumption against the defendant is “strong” in the
sense of imposing a burden of persuasion upon the defendant, and not just a
17
burden of production or of going forward.9 See id.; Rodi Yachts, 984 F.2d at 886
(acknowledging but criticizing courts’ use of the “strong” presumption).
Fischer also argues that because the district court found that Hurricane
Frances was not “so catastrophic that no reasonable preparations could have
prevented the vessel from breaking free of its moorings,” Siavrakas was required
to prove that he could not have possibly prevented the accident. In support of his
position, Fischer relies principally on language in The Louisiana that has since
been repeatedly recited, namely that a defendant whose vessel has struck the
plaintiff’s property is liable unless he can “show affirmatively that the drifting was
the result of inevitable accident, or a vis major, which human skill and precaution,
and a proper display of nautical skill could not have prevented.” 70 U.S. (3 Wall.)
at 173. Fischer contends that this, the so-called act of God defense, requires the
defendant to prove that it took not just one reasonable course of action among
many, but all reasonable measures. The Supreme Court applies this test, however,
to an argument of superceding causation, not to a denial of negligence. In The
9
Strong presumptions shift the burden of persuasion to the defendant such that even if the
defendant presents exculpatory evidence, the jury still has to find that a preponderance of the
evidence outweighs the facts presumed in favor of the plaintiff. 2 McCormick on Evidence
§ 344 (6th ed. 2006). In contrast, “weak” presumptions are mere inferences in the plaintiff’s
favor that carry no weight in opposition to actual exculpatory evidence. A memorable simile
describes “weak” presumptions to be “like bats of the law flitting in the twilight, but
disappearing in the sunshine of actual facts.” Id.
18
Louisiana itself, the Court concluded that the defendant had been negligent in
anchoring the vessel to the dock. Thus, the only available defense to the
defendant in that case was the assertion of a superceding cause. Accordingly, the
Court looked to whether the change in tides would have unmoored the vessel even
had all reasonable preparations been made. Id. at 174.
The act of God defense denies that the defendant’s acts or omissions, even
assuming they did not meet the standard of reasonable care under the
circumstances, caused the accident. See Warrior & Gulf Navigation Co. v. United
States, 864 F.2d 1550, 1553 (11th Cir. 1989) (“A party may be deemed negligent
yet still be exonerated from liability [i]f the act of God would have produced the
same damage irrespective of the party’s negligence.”). Such accidents are
“inevitable” or “unavoidable” in the sense of being overdetermined. In other
words, the accident would have happened anyway regardless of what the
defendant did. This defense sensibly requires a showing that all reasonable
measures would have been futile.
Siavrakas’s position, as well as the district court’s, did not contest causation
but rather negligence. All of Siavrakas’s experts’ trial testimony went to show
that the decision to leave the Neraida in Lake Worth with two anchors was at least
as reasonable a course of action – if not more so – than attempting to move the
19
boat elsewhere. Likewise, the court stated that Siavrakas “took reasonable
precautions under the circumstances as known or reasonably to be anticipated [] to
prepare the S/Y Neraida for Hurricane Frances.” As a practical matter of proof,
the two defenses will often rely on the same evidence because it may be difficult
to persuade the fact-finder that a storm was so fierce as to make an accident
inevitable without first demonstrating that the defendant did everything in his
power to prevent the accident. But as a doctrinal matter, asserting that the
defendant took reasonable care does not require the proof that even supra-
reasonable care would not have prevented the accident.
C.
Fischer lastly challenges as clearly erroneous the district court’s finding that
Siavrakas took reasonable care in preparing for Hurricane Frances. Reasonable
care in this context 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).
Applying this standard, Fischer points to three specific acts and omissions that he
contends demonstrate Siavrakas’s negligence and the district court’s clear error.
First, Fischer argues that Siavrakas was negligent in failing to remove the
Neraida’s sails. However, Fischer’s expert, Thomas Correll, did not have an
opinion on whether the sails, two of which had become unfurled during the storm,
20
posed any significant risk of moving the Neraida from its anchorage. He also
acknowledged that one sail that was severely damaged during the storm was not in
a configuration that would have generated any force to move the boat. Thomas
Danti, Siavrakas’s expert, testified that removing the sails before a storm is
advisable because it protects the sails, but that leaving them furled does not pose a
risk of causing the boat to break anchorage.
Second, Fischer contends that Siavrakas failed to show that the Neraida’s
anchorage was reasonable for the storm. Specifically, he argues that the Neraida
should have had more than two anchors, and that, at the very least, the secondary
anchor should have been set manually instead of dropped from the side of the
boat. Prior to trial, Correll had stated in an affidavit that using three anchors
would have been reasonable in this situation. During the trial, he retreated from
this position on cross-examination when he was presented with an authoritative
treatise and conceded that in shifting wind conditions using fewer anchors is often
safer. This testimony is consistent with that offered by Danti, who stated that
dropping a secondary anchor was probably not even necessary. Additionally, both
Danti and Correll appear to agree that the Neraida’s secondary anchor sets itself
once the boat begins to move such that manual setting is unnecessary.
21
Third, Fischer also argues that Siavrakas should have moved the Neraida to
a different location after he first learned about Frances on August 26 but before
the first hurricane warnings were issued on September 1. The parties presented
copious testimony at trial from the dueling experts on the reasonableness of
Siavrakas’s decision to keep the Neraida in Lake Worth. Fischer’s proffered
alternative was to move the boat to New River, which is further south near Fort
Lauderdale, even before it became clear where Frances was going to hit.
However, it seemed doubtful whether the Neraida could have made it that far even
in clear weather given the boat’s seven-foot draft and stretches of shallow water
between Lake Worth and New River. The district court apparently credited
Danti’s testimony that keeping the Neraida in Lake Worth was a reasonable
decision in light of the uncertainty over the storm’s movement, the hazards of
navigating in shallower waterways, and the risks of docking in more densely
packed anchorages further south, where boats are more likely to suffer damage
from flying debris during a storm. On the record before us, there appears to be
substantial evidence to support the district court’s findings, and thus we cannot
conclude that the court made a clear error in finding Siavrakas’s actions to be
reasonable under the circumstances.
III.
22
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
23