In re: Bowman
Filing
43
OPINION AND ORDER denying 17 motion to dismiss. Signed by Judge John E. Steele on 7/25/2018. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
IN RE: WILLIAM BOWMAN, as
titled owner of and for a 37'
2012 Boston Whaler, hull
identification
number
BWCE0946B212 her engines,
tackle, and appurtenances,
for
exoneration
from
or
limitation of liability,
Petitioner,
Case No: 2:18-cv-71-FtM-29MRM
OPINION AND ORDER
This matter comes before the Court on review of claimant
Benjamin Bair’s Motion to Dismiss Petition for Exoneration from or
Limitation of Liability for Lack of Subject Matter Jurisdiction
(Doc. #17) filed on March 30, 2018.
Petitioner filed a Response
in Opposition (Doc. #35) on June 12, 2018, and claimant filed a
Reply (Doc. #41) on July 6, 2018.
I.
Petitioner William Bowman (“Bowman”) initiated this action by
filing a Petition for Exoneration or Limitation of Liability
pursuant to the Limitation Act, 46 U.S.C. § 30501 et seq. (the
“Act”), and Supplemental Rule F of the Federal Rules of Civil
Procedure.
(Doc. #1.)
The Petition alleges facts as follows: at
all times relevant, petitioner was the owner of the 37’ Boston
Whaler, hull identification number BWCE0946B212 (the “vessel”).
1
(Id., ¶¶ 6, 12.)
On or about August 3, 2017, petitioner’s vessel
collided around the mouth of the Calloosahatchee River with another
vessel operated by claimant Benjamin Bair (“Bair”), with Joseph
Lugo 1 on board as a passenger.
(Id., ¶ 9.)
The vessel was in
navigable waters and was physically damaged, and petitioner was
onboard the
vessel at the time.
(Id., ¶¶ 10-11, 13.)
Petitioner
does not allege whether he was alone on his vessel, or that he
himself was the operator of the vessel.
Petitioner alleges that
there was no negligence in his part that caused or contributed to
any alleged injury or loss or damage sustained by Benjamin Bair
and Joseph Lugo.
(Id., ¶ 20.)
Count I seeks exoneration from liability and Count II seeks,
in
the
alternative,
petitioner’s vessel.
limitation
of
liability
(Id., ¶¶ 16-27.)
to
the
value
of
In support, petitioner
alleges that the vessel was seaworthy at all relevant times and in
all respects.
(Id., ¶¶ 17-18.)
Petitioner states that the value
of the vessel at the time was no more than $170,000.
(Id., ¶ 27.)
In his Motion, Claimant avers that petitioner negligently
entrusted and negligently supervised his son, Adam Bowman, who was
allegedly operating the vessel at the time of the collision. (Doc.
#15, ¶ 9.)
These claims were formally presented in Bair’s Claim
1
Joseph Lugo has not filed any action, nor responded in this
matter, with respect to the incident at hand. (Doc. #17, p. 1);
(Doc. #41, p. 2.)
2
filed with the Court alleging negligent entrustment and negligent
supervision.
matter.
(Doc. #15.)
(Doc. #33.)
Bair is now the only claimant in this
A Default Judgment (Doc. #34) was issued as
to all claimants that failed to file a claim by the Court’s
deadline.
II.
Claimant
argues
that
the
Court
lacks
subject
matter
jurisdiction because success on his negligent entrustment and
negligent supervision claims inherently require proving privity or
knowledge,
protection.
and
petitioner
cannot
avail
himself
of
the
Act’s
A facial challenge to subject matter jurisdiction
under Fed. R. Civ. P. 12(b)(1) is premised on the allegations in
the
complaint,
which
the
district
court
assumes
to
be
true.
Morrison v. Amway Corp., 323 F.3d 920, 924 n.5 (11th Cir. 2003).
The
Limitation
of Liability 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.”
U.S.C. § 30505.
46
This 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. v. Shubert, 86 F.3d 1060, 1064 (11th
Cir. 1996).
This definition has expanded to include constructive
3
knowledge, that is, “what the vessel owner could have discovered
through reasonable inquiry.”
Id. (citing cases).
Claimant relies on the Seventh Circuit decision of Joyce v.
Joyce, 975 F.2d 379 (7th Cir. 1992), also cited by the Eleventh
Circuit in Suzuki of Orange Park, Inc. v. Shubert, 86 F.3d 1060,
1064 (11th Cir. 1996).
(Doc. #41, p. 2.)
Under Joyce, the Court
noted that “if a shipowner knows enough to be liable for negligent
entrustment, he knows too much to be eligible for limited liability
under the Act.”
Joyce v. Joyce, 975 F.2d 379, 385 (7th Cir. 1992).
“[T]he essential thrust of the tort of negligent entrustment is
that a shipowner can be held liable for negligent entrustment only
if he knows or has reason to know that the person being entrusted
is incapable of operating the vessel safely.”
Id.
This case is easily distinguishable from Joyce because the
Complaint
in
that
case
alleged
exactly
who
was
negligent
in
operating the vessel, and who as owner was negligent in entrusting
the boat to the operator.
Here, at this stage of the proceedings,
the Court has no facts on the face of the Petition that reflect
that petitioner concedes privity or knowledge, “or where it is
otherwise impossible under any set of circumstances for the vessel
owner to demonstrate the absence of privity or knowledge”, Suzuki,
86 F.3d at 1064, because there are no allegations as to the
operator of his vessel at all.
4
The Eleventh Circuit has also cautioned against summarily
deciding whether it is impossible under any set of circumstances
for a vessel owner to demonstrate the lack of privity or knowledge
on a motion to dismiss.
See M/V Sunshine, II v. Beavin, 808 F.2d
762, 765 (11th Cir. 1987).
Because the Court cannot unequivocally
determine petitioner’s privity or knowledge of any specific acts
of negligence on the face of the Petition before determining
liability, the motion must be denied.
Accordingly, it is now
ORDERED:
Claimant’s Motion to Dismiss Petition for Exoneration or
Limitation of Liability For Lack of Subject Matter Jurisdiction
(Doc. #17) is DENIED.
DONE AND ORDERED at Fort Myers, Florida, this
July, 2018.
Copies:
Counsel of record
5
25th
day of
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