SCHNEIDER

This matter comes before the Court on review of Allstate Property and Casualty Insurance Company’s Motion for Partial Summary Judgment, Statement of Material Facts, and Supporting Memorandum of Law (Doc. #94) filed on September 22, 2022. Petitioner James Schneider filed a Response in Opposition (Doc. 95) on October 12, 2022, as did third-party defendant Robert Slade (Doc. #96) on October 13, 2022. This case involves the collision of two recreational vessels in heavy fog while they were underway in the Gulf of Mexico off the coast of Naples, Florida. One of the vessels, a 2005 34’ S2 YACHTS (Pursuit) Motor Vessel, HIN# SSUH4102G405, USCG Official No. 1267657 – the “the Whiskey Tango Foxtrot” – was owned by Petitioner James Schneider (Petitioner or Schneider). The second vessel, a 2019 24’ Boston Whaler, HIN# BWCE1678A919 and Florida Registration No. FL6069SM – the “Paradox” – was owned by Julie Leonard (Leonard) and insured by Allstate Property and Casualty Insurance Company (Allstate). Due to the collision, both vessels suffered damage (Doc. #1, ¶ 8), and Leonard claims to have suffered bodily injuries that are either permanent or continuing in nature. (Doc. #12, ¶ 19.) On July 20, 2021, Petitioner initiated this action seeking to exonerate or limit his liability pursuant to Limitation of Liability Act, 46 U.S.C. § 30505 (the Limitation Act)1. (Doc. #1.) Leonard filed an Answer and affirmative defenses on August 19, 2021, claiming that Schneider’s negligence caused the collision between the vessels. (Doc. #12.) Allstate then filed an Answer, affirmative defenses, and a subrogated claim against Petitioner for damages to the Leonard vessel resulting from the collision.2 (Doc. #21.) Leonard also filed a third-party complaint against

Limitation Act does not apply because of Schneider’s negligence, and requests that this Court lift the stay so that Leonard and Allstate may litigate personal injury and property damage claims in state court. (Doc. #94, p. 2.) Petitioner and Slade argue there are material facts in dispute which would preclude an entry of summary judgment in this matter. (Docs. ##95, 96.) For the reasons set forth below, the motion is denied.

I.

Motions for summary judgment should only be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex

‘genuine’ if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party.” Baby Buddies, Inc. v. Toys “R” Us, Inc., 611 F. 3d 1308, 1314 (11th Cir. 2010). A fact is “material” if it may affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A court must decide ‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.’” Hickson Corp. v. N. Crossarm Co., Inc., 357 F. 3d 1256, 1260 (11th Cir. 2004)(quoting Anderson, 477 U.S. at 251). In ruling on a motion for summary judgment, the Court views all evidence and draws all reasonable inferences in favor of the nonmoving party. Tana v. Dantanna's, 611 F. 3d 767, 772 (11th Cir. 2010). "If reasonable minds might differ on the inferences arising from undisputed facts, then the court should deny summary judgment." St. Charles Foods, Inc. v. America's Favorite Chicken Co., 198 F. 3d 815, 819 (11th Cir. 1999) (quoting Warrior Tombigbee Transp. Co. v. M/V Nan Fung, 695 F. 2d 1294, 1296-97 (11th Cir. 1983)). "If a reasonable fact finder evaluating the evidence could draw more than one inference from the facts, and if that inference introduces a genuine issue of material fact, then the court should not grant summary judgment." Allen v. Bd. of Pub. Educ. for Bibb Cnty., 495 F. 3d 1306, 1315 (11th Cir. 2007).

II.

The material relevant facts (some of which are undisputed) are as follows: On February⁸, 2021, Leonard was bringing her vessel (the “Paradox”) back to her residence from Marine Max (the Marina) in Naples, Florida, where it was being serviced. (Doc. #1, ¶ 10; Doc. 94-1, pp. 13, 15.) When Leonard left the Marina (around⁴:30 p.m.), she did not turn the vessel’s running lights on because it was “clear and sunny.” (Doc. #94-1, pp. 18-20.) Leonard expected to reach her home by sunset — around⁶:20 p.m. (Id.) During Leonard’s voyage home, a dense, heavy fog came about — there was zero visibility, and it was getting darker. (Doc. #85-2, p. 10;

Doc. #80, p. 20; Doc. #94-1, p. 28.) Schneider and Slade were aboard Schneider’s vessel (the “Whiskey Tango Foxtrot”); both men were going north to Naples to fish from a spot Schneider had selected. (Doc. #94-2, pp. 14-15.) Slade was operating Schneider’s vessel for the first time.⁴ (Id.,

66.) Upon impact of the two vessels, Leonard was knocked unconscious and does not recall her vessel going in circles or there being a second impact with Schneider’s vessel. (Id., pp. 51, 56.) Leonard did not recall seeing running lights on Schneider’s vessel before impact. (Id., p. 63.) Following the collision, Leonard boarded Schneider’s vessel and alleges that Schneider and Slade smelled of alcohol. (Doc. #94-1, p. 95.) Schneider and Slade, on the other hand, state that right before the collision the two vessels were not headed directly towards one another – Schneider’s vessel was heading due south while Leonard’s vessel was heading north to northeasterly. (Doc. 80, pp. 20, 22.) Schneider’s vessel was traveling less than 10 mph at the time of the collision. Schneider, who was acting as a

“spotter,” saw Leonard’s vessel about three seconds before the collision. (Doc. #85, pp. 13-14; Doc. #94-2, pp. 16-18, 20.) Schneider yelled “boat, boat, boat,” but Slade did not have time to turn the vessel and avoid the collision because Leonard was “going too fast” and there was “zero visibility.”⁶ (Doc. #80, pp. 20, 29; Doc. #94-2, p. 20; Doc. #95-2, pp. 12-13.) Schneider claims that his vessel’s navigational lights were turned on at the time of the collision because he had set up all the lights while Slade was operating the vessel. (Doc. #80, p. 20; Doc. #85-2, p. 11.) Schneider and Slade deny that there is any evidence showing they were intoxicated at the time of the collision. According to both men, Leonard asked them not to call 911, and she did not call the police. (Doc. #94-1, p. 100.)

III.

A. The Limitation Act

The Limitation Act (the Act) "limits a vessel owner's liability for any damages arising from a maritime accident to the value of the vessel and its freight, provided that the accident occurred without such owner's 'privity or knowledge.'"⁷ Beiswenger

Enters. Corp. v. Carletta, 86 F. 3d 1032, 1033-34 (11th Cir. 1996); In re Phillips, No. 2:19-CV-14070, 2020 U.S. Dist. LEXIS 109130, at *6 (S.D. Fla. Mar. 30, 2020). Specifically, the Act provides that the shipowner's liability "shall not exceed the value of the vessel and pending freight," at least for certain claims. 46 U.S.C. § 30505(a); see also Orion Marine Constr., Inc. v. Carroll, 918 F. 3d 1323, 1325 (11th Cir. 2021). Qualifying claims are "those arising from any embezzlement, loss, or destruction of any property, goods, or merchandise shipped or put on board the vessel, any loss, damage, or injury by collision, or any act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or incurred, without the privity or knowledge of the owner." Id. § 30505(b).

In a proceeding under the Limitation Act, maritime torts are reviewed under a two-step analysis. First, the court "determine[s] what acts of negligence or conditions of unseaworthiness caused the accident." Martinez v. Reynolds, 2022 WL 1113001, 2022 U.S. App. LEXIS 10035, at *16 (quoting Tug Allie-B, Inc. v. United States, 273 F. 3d 936, 944 (11th Cir. 2001) (citation and quotations omitted)). Liability is established only where the vessel owner's negligent acts were "a contributory and proximate cause of the accident." Hercules Carriers, Inc. v. Claimant State of Fla., 768 F. 2d 1558, 1566 (11th Cir. 1985) (citing Bd. of Comm’rs of the Port of New Orleans v. M/V Farmsum, 574 F. 2d 289, 297 (5th

Cir.1978)). If the shipowner is free from any contributory fault, he is exonerated from all liability. See Am. Dredging Co. v. Lambert, 81 F. 3d 127, 129 (11th Cir. 1996). If negligence was at least partly what produced the accident, the court proceeds to the second step and determines whether the vessel owner had knowledge of or was in privity with the acts of negligence or conditions of unseaworthiness. Martinez, 2022 U.S. App. LEXIS 10035, at *16 (citing Tug Allie-B, Inc., 273 F. 3d at 944). "The damage claimants bear the initial burden of establishing liability (i.e., negligence or unseaworthiness), and the shipowner then bears the burden of establishing the lack of privity or knowledge." In re Phillips, 2020 WL 3315994, 2020 U.S. Dist. LEXIS 109130, at *10 (quoting Suzuki of Orange Park, Inc. v. Shubert, 86

F. 3d 1060, 1062-63 (11th Cir. 1996)). If there is liability, but the vessel owner is entitled to limitation of liability, the "court oversees the distribution of the limitation fund among the damage claimants." Suzuki of Orange Park, Inc., 86 F. 3d at 1063.

IV.

A. Negligence or Unseaworthiness

As the Court previously mentioned, “[t]he first step in determining a shipowner's entitlement to limitation of liability is to establish what acts of negligence or conditions of unseaworthiness caused the accident.” Hercules Carriers, Inc., 768 F. 2d at 1565. Allstate bears the initial burden of proving such negligence or unseaworthiness. Suzuki of Orange Park, Inc., 86 F. 3d at 1063. "Establishing negligence under either maritime or common law requires proving the same elements." In re Royal Caribbean Cruises Ltd., 991 F. Supp. 2d 1171, 1182 (S.D. Fla. 2013). "To prevail in a negligence action, the plaintiff must show: (1) that the defendant owed a duty of reasonable care to the plaintiff; (2) that the defendant breached that duty; (3) that the breach was the proximate cause of the injury to the plaintiff; and (4) that the plaintiff suffered damages." Hasenfus v. Secord, 962 F. 2d 1556, 1559-60 (11th Cir. 1992). In their Answer, Allstate asserts that Schneider breached the duties owed in the operation of his vessel by (1) failing to maintain a proper lookout; (2) failing to proceed at a safe speed in reduced visibility caused by dense fog; (3) failing to sound his vessel’s horn every two minutes (4) turning his vessel Port (right) rather than starboard; (5) failing to take action to avoid the collision; (5) failing to supervise and guide Slade’s actions; and (6) failing to sound the danger signal (five short whistle blasts) upon observing Leonard’s vessel. (Doc. #21, pp. 10-11.) Allstate argues that as a direct and proximate result of Schneider’s negligence, the collision between the two vessels occurred and Leonard (and Allstate, as subrogee) suffered property damages. (Id., p. 11.)

While the Court agrees that the aforementioned facts may serve as a basis for Schneider’s negligence and the proximate cause of the collision and damages, there are numerous material facts in dispute as to vessel speed, lighting, and pre-collision maneuvers that preclude such a finding as a matter of law. There is also ample contradictory evidence demonstrating that Leonard’s actions – the speed at which she was traveling, whether her vessels’ lights were on, the lack of use of a foghorn, and the direction of her vessel – may have been negligent, and thus, the proximate cause for the collision between the vessels. Viewing the evidence in a light most favorable to Petitioner, the Court finds that the record shows that a genuine dispute of fact exists over whether Schneider was negligent and whether he was the proximate cause of the collision between the vessels.

B. Lack of Privity or Knowledge

The Eleventh Circuit explained that "consistent with the statutory purpose to protect innocent investors, 'privity or knowledge' generally refers to the vessel owner's personal participation in, or actual knowledge of, the specific acts of negligence or conditions of unseaworthiness which caused or contributed to the accident." Suzuki of Orange Park, Inc., 86 F. 3d at 1064. "The shipowner's privity or knowledge is not measured against every fact or act regarding the accident; rather, privity or knowledge is measured against the specific negligent acts or unseaworthy conditions that actually caused or contributed to the accident." Id. "[K]nowledge is not only what the shipowner knows but what he is charged with discovering in order to apprise himself of conditions likely to produce or contribute to a loss." Hercules Carriers, Inc., 768 F. 2d at 1564. Allstate argues that the record clearly shows Schneider had knowledge and privity of the negligent operation of his vessel because Schneider not only negligently entrusted the operation of his vessel to Slade, he participated in the negligent operation of his vessel as well.⁸ (Doc. #94, p. 19.) “There can be no ‘privity or knowledge’ unless the claimant can establish negligence.” ROYAL CARIBBEAN CRUISES, LTD. v. ROYAL

CARIBBEAN CRUISES, LTD., 55 F. Supp. 2d 1367, 1372 (S.D. Fla. 1999)(citing Farrell Lines, Inc. v. Jones, 530 F. 2d 7, 10 (5th

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JGHN E. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

Copies: Parties of record