The plaintiffs, Hatt 65, LLC and the Frank W. Boykin, II, Family Trust ("the Trust"), brought this action against the defendants Terry Kreitzberg and the S/V ESCAPE for damages sustained by the fishing yacht, the WEJ, during Hurricane Dennis.
The district court rested its judgment on the following factual findings. "On July 8, 2005, the National Hurricane Center (NHC) issued a hurricane watch that included all areas along the coastline of the Gulf of Mexico"; "the watch was upgraded to a hurricane warning, indicating that hurricane force conditions were expected within 24 hours or less." Hatt 65, LLC v. Kreitzberg, No. 3:06cv332, 2009 WL 3163220, at *2 (N.D.Fla. Sept. 30, 2009). The NHC forecasted the expected path of the storm to pass west of Gulf Breeze, Florida, and to make landfall at Mobile Bay, Alabama. This track "would have resulted in winds hitting the Gulf Breeze area from the south and west." Id. Had Hurricane Dennis followed its anticipated path, "the waters along the protected northern shores of Gulf Breeze would have experienced little wave action . . . because of the protection afforded by the peninsula's land mass." Id. Finally, if the storm had taken its projected path, "the greater fetch[
Mr. Kreitzberg was an "experienced mariner." Id. at *4. He "had purchased the Escape in March 2005 and kept it in a slip at the Pier One Marina, located just north of the mouth of Hoffman Bayou," in Gulf Breeze. Id. at *4. Mr. Kreitzberg "began his hurricane preparations in May 2005." Id. He first inquired of local mariners about the best location to moor the ESCAPE during a hurricane; specifically, he spoke to Wayne Wheatley, the owner of the Pier One Marina. Wheatley described for Mr. Kreitzberg the placement and type of mooring that he had used for his 42-foot catamaran, which had survived Hurricane Ivan the previous year. Mr. Kreitzberg constructed a similar mooring out of concrete, metal rebar and chain. In June 2005, Mr. Kreitzberg placed the mooring
Based on the anticipated path of Hurricane Dennis, Mr. Kreitzberg's "mooring appeared to be in a relatively protected spot." Id. The ESCAPE's "main mast was too tall to pass under the Pensacola Bay Bridge," and, consequently, Mr. Kreitzberg "could not take the Escape farther east." Id. Moving the ESCAPE to the west would have brought it closer to the projected path of the hurricane. Mr. Kreitzberg therefore "attached the Escape to his concrete mooring using a 40-foot rope to make a 20-foot bridle with a rubber tire to absorb the shock." Id. The district court also credited Mr. Kreitzberg's testimony that he set a Super Max storm anchor—capable of holding 80,000 pounds (compared to the ESCAPE's 48,-800 pounds)—with snubber by dropping it and reversing the engines.
On the morning of July 10, 2005, "Frank Boykin, who lives along the north shore of Gulf Breeze on property overlooking Hoffman Bayou," made his own hurricane preparations with the help of Brian Finkbone, Mark Braxton and Dan Green. Id. at *3. "[E]xpecting the storm to make landfall to the west," they moved the WEJ, Boykin's 1990 65-foot Hatteras convertible sport fisherman vessel, "out from its ordinary slip at the dock and turned it to face east." Id. "They deployed two anchors. . . . A number of mooring lines of new heavy nylon were tied from the WEJ to freestanding pilings on both sides of the WEJ, the dock behind the WEJ, and a tree on shore." Id.
"Boykin's house faces north toward Hoffman Bayou"; it overlooks the dock and the vessels, "which are clearly visible from inside the house." Id. Early in the storm, Boykin and his friends
Id. (footnote omitted).
Boykin estimated that, at 9:00 a.m., the wind was around 25 mph; however, at 9:00 a.m., the Pensacola Naval Air Station measured the wind speed at 31 mph, with gusts of up to 46 mph, blowing out of the north/northeast. One of Mr. Kreitzberg's experts, Dr. Lee Branscome, "testified that the winds would have been higher where the Escape was moored because of the wind direction and the fetch." Id. at *3 n. 10. By 10:00 a.m., the Naval Air
Earlier that morning, the 4:00 a.m. NHC forecast projected "the storm to make landfall near Mobile Bay to the west" of Gulf Breeze. Id. at *2. "At the last minute, however, the storm's actual path unexpectedly took the eye of the storm east of Gulf Breeze." Id. This alteration in course "drove the strongest winds from the western part of the eyewall across Pensacola Bay and toward Gulf Breeze, rotating in from the north and then the northwest." Id.
"[A]t 2:27 in the afternoon, the center of the eye of Hurricane Dennis made landfall. . . eight miles east of Gulf Breeze," farther east than originally predicted. Id. at *1 (footnote omitted). The sustained winds, "blowing from the northwest across Pensacola Bay toward Gulf Breeze and straight into Hoffman Bayou, were 85 to 90 mph, with peak gusts of 105 mph." Id. at *2.
"When the storm let up, the WEJ was gone. Boykin and friends went outside in search of it and found the WEJ beached on a spit of neighboring land protruding into Hoffman Bayou and due east of where the WEJ had been moored." Id. at *3. "Boykin believed that the Escape had allided with the WEJ by crossing its anchor line, pulling the WEJ from its mooring, and that the mast and spreader of the Escape had made contact with the outrigger antenna on the WEJ." Id. Other witnesses confirmed Boykin's theory that the ESCAPE had allided with the WEJ during the storm. Specifically, the ESCAPE likely passed over the WEJ's anchor line, causing the vessels to come into contact on the port side of the WEJ.
Mr. Kreitzberg presented the testimony of a meteorologist, Dr. Branscome, and an expert in seamanship, Thomas Danti. Dr. Branscome testified that the change in the course of the storm created wind and sea conditions in the Gulf Breeze area that were worse than had been anticipated. Danti testified that Mr. Kreitzberg's "actions in preparing the Escape for the storm constituted reasonable seamanship under the circumstances." Id. at *5. Notably, he testified that "[t]he concrete mooring itself and the method Kreitzberg used to connect it to the vessel w[ere] `totally acceptable.'" Id.
In rendering its judgment, the district court first observed that "[s]everal well-established principles . . . govern the determination of liability and fault in admiralty cases." Id. at *6. First among these was the Louisiana rule, which "creates a rebuttable presumption that[,] where a drifting vessel has allided with a stationary vessel or object, the drifting vessel is at fault." Id. (citing The Louisiana, 70 U.S. (3 Wall.) 164, 18 L.Ed. 85 (1865)). Thus, the "threshold question" was "whether there was an allision between the Escape and the moored WEJ." Id. The court
The court then explained that
Id. (quoting Fischer v. S/Y NERAIDA, 508 F.3d 586, 593 (11th Cir.2007)). The court determined that two of the available defenses had been established. First, Mr. Kreitzberg had acted with reasonable care in securing the ESCAPE. The district court noted that Mr. Kreitzberg's expert had testified that his "preparations were reasonable and `textbook.'" Id. at *8. The plaintiffs did not present any contrary expert testimony but "responded only that Kreitzberg's negligence was obvious because witnesses had observed the Escape dragging its mooring early in the morning of July 10th, well before the storm was raging." Id. The district court determined that, because Mr. Kreitzberg successfully had rebutted the presumption of the Louisiana rule, an assertion of res ipsa loquitur was insufficient to carry the day: "The court will not impose another inference based solely upon the fact that [Mr.] Kreitzberg's preparations, though reasonable, ultimately failed to prevent the accident, especially in the absence of conflicting expert testimony." Id.
The district court noted that, because it had determined that the defendants had satisfied one of the possible defenses, it did not need to reach the other possible defense—that the accident was unavoidable due to Hurricane Dennis. However, it concluded that, if it had reached this question, it would have determined that the accident was unavoidable because, through the reasonable efforts of its owner, the ESCAPE had been moored in a good location to weather the expected storm, a location that turned out to be "the worst possible spot" when the storm took an unexpected turn. Id. at *9.
The district court next concluded that the Pennsylvania rule, see The Pennsylvania, 86 U.S. (19 Wall.) 125, 136, 22 L.Ed. 148, 151 (1873), which "shifts the burden of proof" to the vessel "in violation of a statutory rule intended to prevent accidents," Hatt 65, 2009 WL 3163220, at *10 (quotation marks omitted), did not provide a basis for liability. The plaintiffs had maintained that Mr. Kreitzberg's failure to obtain a permit for his mooring constituted such a violation and therefore placed on Mr. Kreitzberg the burden of establishing that the violation "could not have been a contributory cause of the allision." Id. (quotation marks omitted). The district court disagreed that the Pennsylvania rule was applicable because the plaintiffs had not demonstrated that this permit was intended to prevent accidents of the type involved in this case. The district court therefore entered judgment on behalf of the defendants.
On appeal, the plaintiffs first argue that the district court erred in concluding that Mr. Kreitzberg had rebutted the presumption of fault created by the Louisiana rule. The plaintiffs agree that the district court correctly stated the applicable rule: When a vessel, moving or
The plaintiffs maintain that the district court clearly erred in concluding that Mr. Kreitzberg's preparations were reasonable. At trial, Mr. Kreitzberg testified as to his preparation for the hurricane, including the construction and placement of his mooring. He also testified that, when he checked the position of the ESCAPE three times on the morning of July 10 between approximately nine and twelve, "[e]verything looked fine." R.228 101; see id. at 100-02. Mr. Kreitzberg's seamanship expert testified that the concrete mooring itself "was suited for its purpose," that the method Mr. Kreitzberg used to connect the mooring to the vessel was "totally acceptable" and that Mr. Kreitzberg's placement of the mooring constituted "reasonable seamanship actions." R.227 at 141, 144, 151.
The plaintiffs, however, insist that the district court should not have been persuaded by this evidence in light of the testimony of eye-witnesses that the ESCAPE was dragging its moorings in sustained winds of only 25 to 35 mph. Specifically, in their opening brief to this court, the plaintiffs asserted that, "[a]t approximately 8:30 to 9:00 a.m., about six hours prior to the storm making landfall, Messrs. Finkbone and Braxton observed, and testified to, the ESCAPE dragging more than 200 yards from her initial and intended mooring to the west while in the lee of Highway 98." Appellants' Br. 9. In support of this statement, the plaintiffs refer the court to two places in the record. The first reference is to Finkbone's testimony, which states: "Well, basically we thought it interesting that a boat that we observed at 7:00 or 7:30 out there that was moored had moved significantly, 200 yards or so. . . ." R.225 at 44. During cross-examination, however, when confronted with his deposition testimony, Finkbone admits that he previously had testified that he did not "actually see it [the mooring] dragging at any time before [he] took the pictures" and that he "could not tell" whether it was dragging "before, during, or after the taking of these pictures." Id. at 73 (quotation marks omitted).
Contrary to the plaintiffs' assertion, the district court did not ignore this testimony, but simply declined to give it controlling weight. Neither Finkbone nor Braxton could state affirmatively that, before they lost sight of the ESCAPE at 11:30 a.m., it was dragging its moorings "more than 200 yards" or in sustained winds of only 25 to 35 mph. The district court, which observed the witnesses at trial, noted this uncertainty in its findings of fact: "Finkbone testified that . . . he did not actually see it dragging from its mooring because that would be difficult to detect." Hatt 65, 2009 WL 3163220, at *3. The district court was in the best position to observe the witnesses and to gauge the relative weight to afford their testimony. See In re Chalik, 748 F.2d 616, 619 (11th Cir.1984) (stating that "the trial judge is best able to assess the credibility of the witnesses before him and thus the evidentiary content of their testimony"). After doing so, the district court found Mr. Kreitzberg's testimony, coupled with the opinion of his expert, more persuasive than the plaintiffs' witnesses. A trial court's decision to credit the plausible testimony of one witness over another, "each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, . . . can virtually never be clear error." Anderson, 470 U.S. at 575, 105 S.Ct. at 1512, 84 L.Ed.2d at 529-30.
The plaintiffs next contend that, because the ESCAPE was in violation of a Florida statute and regulation at the time it allided with the WEJ, the district court should have placed the burden on the ESCAPE to show that the violation was not the cause of the allision, as required by the Pennsylvania rule. See The Pennsylvania, 86 U.S. (19 Wall.) at 136, 22 L.Ed. at 151. Specifically, the plaintiffs maintain that "Florida law clearly states that markers, such as the one attached to Kreitzberg's homemade mooring, must be permitted by divisions of the state commission and the U.S. Coast Guard." Appellants' Br. 29. Because Mr. Kreitzberg did not obtain a permit, he was in violation of Florida law. Consequently, the plaintiffs believe that he was presumptively at fault for the allision.
Hatt 65, 2009 WL 3163220, at *10.
The facts of The Pennsylvania, 86 U.S. (19 Wall.) 125, 22 L.Ed. 148 (1874), shed some light on how the rule should be applied. In The Pennsylvania, a steamship, going at undue speed in heavy fog, collided with a bark. The ship's lookout had seen the bark from a distance of approximately three to four hundred yards, which was insufficient time to avoid the collision. The bark, however, had failed to blow her foghorn, as required by the rules of navigation, to alert other vessels that she was approaching. The Court concluded that the bark was at fault and then turned to the question of
The Pennsylvania, 86 U.S. (19 Wall.) at 136, 22 L.Ed. at 151 (emphasis added).
We do not believe that the plaintiffs have met their burden of establishing that the ESCAPE was in violation of a statute or regulation intended to prevent allisions at the time it came into contact with the WEJ. The plaintiffs invite our attention to section 327.40 of the Florida Statutes
Nevertheless, the plaintiffs argue that this court's decision in Orange Beach Water, Sewer & Fire Protection Authority v. M/V Alva, 680 F.2d 1374 (11th Cir.1982), requires that we conclude that Mr. Kreitzberg's failure to obtain a permit triggers application of the Pennsylvania rule. There are, however, several crucial differences between Orange Beach and the facts of the present case.
In Orange Beach, the plaintiff had sought and obtained a permit from the Army Corps of Engineers for the construction of a submarine water pipeline through the Gulf Intracoastal Waterway near Mobile, Alabama. The permit detailed the location, size and clearance of the pipeline. It also required "[t]hat there shall be no unreasonable interference with navigation by the existence" of the pipeline and that signs "facing in each navigational direction" should provide a warning of the pipeline crossing to vessels on the waterway. Id. at 1377 (quotation marks omitted). After the building of the pipeline, erosion occurred, causing "the pipeline [to] become exposed at the points where it originally descended on both the north and the south banks." Id. Moreover, the warning signs were not displayed as required. An unidentified vessel allided with the pipeline as it was attempting to navigate around a tug and barges, which were moored near the pipeline on the opposite
Id. (emphasis added). We then observed that "[t]he failure to comply with a permit issued by the Corps triggers the application of the rule of The Pennsylvania." Id.
The mere recitation of the facts in Orange Beach should make the distinctions between it and the present case obvious. Orange Beach involved the violation of 33 U.S.C. § 403, which prohibits the obstruction of navigable waterways absent authorization, and the mishap that occurred "was the most obvious consequence" of noncompliance. Here, by contrast, there is no clear connection between the statute (or regulation) and the harm that occurred. Furthermore, the permit at issue in Orange Beach detailed every aspect of how the pipeline was supposed to be constructed and maintained; it also explicitly required that the pipeline not unreasonably interfere with navigation. Here, no evidence was offered at all as to what the permitting process entailed, including whether the mooring buoy at issue would meet any requirements set by the State. In sum, Orange Beach does nothing to help plaintiffs establish the prerequisites for invoking the Pennsylvania rule.
The judgment of the district court is affirmed.
The case initially included a claim against Hatt 65's insurer, Great Lakes Reinsurance (UK) PLC; however, the parties settled that claim, which was then dismissed with prejudice by the court.
Prior to trial, the district court also dismissed the plaintiffs' claim for loss of market value to the WEJ. Because we affirm the district court's judgment for Mr. Kreitzberg, we do not address the merits of this claim.
Because we have determined that the district court did not clearly err in determining that Mr. Kreitzberg had acted reasonably in securing his vessel, we need not determine whether the district court was correct in determining that the accident was unavoidable.
Before us, the plaintiffs do not maintain that the district court was incorrect in its determination that the specific mooring requirements were not incorporated into the Florida regulations until after Hurricane Dennis.
2005 Fla. Laws 217.
Fla. Admin. Code R. 68D-23.102 (2005).
As with Orange Beach Water, Sewer & Fire Protection Authority v. M/V Alva, the plaintiffs analogize the mooring permit that Mr. Kreitzberg failed to obtain with the permit requirement of § 403. Because the violation of § 403 was a sufficient basis for application of the Pennsylvania rule, the plaintiffs maintain, so should be the permitting requirement under Florida law. As noted in our previous discussion of Orange Beach, however, by its plain language, § 403 is aimed at preventing "obstruction[s]" of navigable waterways that could cause allisions of the very kind that occurred in Sunderland. The plaintiffs failed to come forward with any evidence as to the purpose of the permitting requirement at issue here. Consequently, they did not meet their burden of establishing that the statute or regulation was aimed at preventing allisions.