Eliminator, Inc. v. Southern Belle Fishing, LLC

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

ELIMINATOR, INC., F/V Miss

Amy J,

Plaintiff,

v. Case No.: 2:20-cv-208-SPC-NPM

SOUTHERN BELLE FISHING,

LLC, F/V SOUTHERN BELLE II,

Defendant.

/

OPINION AND ORDER1

Before the Court is Southern Belle Fishing, LLC, F/V Southern Belle II,

XL Specialty Insurance Company, and Navigators Insurance Company’s

(“Movants”) Motion for Summary Judgment (Doc. 62), along with Plaintiffs

Eliminator, Inc. and F/V Miss Amy J’s opposition (Doc. 69)2 and the Movants’

reply (Doc. 71). Also before the Court is Movants’ Motion to Strike Affidavit of

Dennis Henderson, Plaintiffs’ corporate representative, (Doc. 72), along with

Plaintiffs opposition (Doc. 73). For the below reasons, the Court denies in part

1 Disclaimer: Documents hyperlinked to CM/ECF are subject to PACER fees. By using

hyperlinks, the Court does not endorse, recommend, approve, or guarantee any third parties

or the services or products they provide, nor does it have any agreements with them. The

Court is also not responsible for a hyperlink’s availability and functionality, and a failed

hyperlink does not affect this Order.

2 Although Plaintiffs’ response disregards Local Rule 1.08’s typography requirements, the

Court will still accept it as filed. But Plaintiffs should not expect the Court’s future leniency

in overlooking violations of the Local Rules.

and grants in part the Motion for Summary Judgment and denies the Motion

to Strike.

BACKGROUND

This case is about who’s to blame for two shrimping vessels colliding on

the Gulf of Mexico. Plaintiffs own one ship: F/V Miss Amy J.; Defendants own

the other: F/V Southern Belle II. Each side says the other’s negligence caused

the crash. In laying blame, the parties differ on why the collision happened.

So the Court will recount the undisputed facts and note when the parties vary.

The collision occurred almost three years ago in the early morning. The

Southern Belle was traveling southwest at about 3.4 knots, and the Miss Amy

was traveling northeast at about 8.2 knots. One captain and two deckhands

crewed the Miss Amy. Although the Miss Amy crew had some commercial

fishing experience, it was everyone’s maiden voyage on the vessel. But the

same can’t be said for the Southern Belle, who had two captains and two

deckhands on board. They all had crewed the Southern Belle before, and the

two captains were father and son.

When the Miss Amy was within about five nautical miles of the Southern

Belle, the Southern Belle’s automatic identification system (“AIS”) alerted the

on-duty captain, Tam Tuan Phan, of the potential collision target. In response,

Captain Phan radioed the Miss Amy over a general channel. He said, “Miss

Amy J, Miss Amy J, can you hear me? Come back. What course are you

heading? Come back.” (Doc. 62-1 at 36:13-18). The Miss Amy did not respond.

Because Captain Phan knew the vessels would collied without course

changes, he twice shifted the Southern Belle due south and decreased its speed.

He also tried radioing the Miss Amy three more times. When those attempts

failed, Captain Phan blared a foghorn and shined a spotlight at the Miss Amy’s

wheelhouse. He got no response. Captain Phan then decreased to idle speed.

But the Miss Amy wasn’t oblivious to the developing situation. At some

point, its captain, Steven Swendsen, saw the Southern Belle on his radar and

AIS. (Doc. 69). In response, he made three ten-degree starboard course

adjustments to avoid a collision. After the last adjustment, Captain Swendsen

left the steering house. (Doc. 69 at 2, ¶ 16).

Neither vessel’s adjustments worked because the Southern Belle’s bow

rammed into the Miss Amy’s wheelhouse. The Miss Amy sustained nearly a

quarter of a million dollars in damages.

Plaintiffs have thus sued Defendants for negligence and seek to recover

the costs to fix the Miss Amy. (Doc. 19). Defendants have denied any

wrongdoing and have counterclaimed against Plaintiffs. They allege Plaintiffs

negligently caused the collision “by the improper navigation and maintenance

of Plaintiffs’ vessel, its improper training of its crew, and other careless and

negligent acts.” (Doc. 47 at 7-12). The suit doesn’t end there. The Southern

Belle’s underwriters, XL Specialty Insurance Company and Navigators

Insurance Company, have intervened to recover the money it has paid or may

become liable to pay because of the collision. (Doc. 45). After years of

discovery, the Movants now move for summary judgment. (Doc. 62). They also

move to strike an affidavit of Plaintiffs’ corporate representative. (Doc. 72).

The Court discusses both motions, starting with summary judgment.

DISCUSSION

A. Motion for Summary Judgment

1. Legal standard

“A party may move for summary judgment, identifying each claim or

defense . . . on which summary judgment is sought. The court shall grant

summary judgment if the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). A dispute is genuine “if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it may “affect

the outcome of the suit under the governing law.” Id.

For issues the movant must prove, the “movant must affirmatively show

the absence of a genuine issue of material fact, and support its motion with

credible evidence demonstrating that no reasonable jury could find for the non-

moving party on all of the essential elements of its case.” Landolfi v. City of

Melbourne, Fla., 515 F. App’x 832, 834 (11th Cir. 2012) (citation omitted). But

for issues the non-movant bears the burden, the movant has two options: (1)

point out a lack of evidence to support the nonmoving party’s case; or (2)

provide “affirmative evidence demonstrating that the nonmoving party will be

unable to prove its case at trial.” United States v. Four Parcels of Real Prop.

in Green and Tuscaloosa Cntys., 941 F.2d 1428, 1437-38 (11th Cir. 1991)

(citation omitted). “The burden then shifts to the non-moving party, who must

go beyond the pleadings and present affirmative evidence to show that a

genuine issue of material facts exists.” Porter v. Ray, 461 F.3d 1315, 1320 (11th

Cir. 2006) (citation omitted).

At the summary judgment stage, courts view all facts and draw all

reasonable inferences in the light most favorable to the nonmoving party.

Rojas v. Florida, 285 F.3d 1339, 1341-42 (11th Cir. 2002). It may not

undertake credibility determinations or weigh the evidence when reviewing

the record. See Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1237 (11th Cir.

2010). What’s more, “[t]he court need consider only the cited materials, but it

may consider other materials in the record.” Fed. R. Civ. P. 56(c)(3).

2. Discussion

The Movants seek summary judgment on their counterclaims and

Plaintiffs claims against them. So the Court discusses the claims separately.

i. Movants’ Counterclaims

Movants argue there is undisputed evidence that Plaintiffs violated

certain Coast Guard rules when operating the Miss Amy that triggers the

common-law burden-shifting presumption called the Pennsylvania Rule, which

is available when two vessels collide. The Pennsylvania Rule comes from a

nineteenth century Supreme Court maritime decision. The Pennsylvania, 86

U.S. (19 Wall.) 125 (1873). There, the Court held that a party who violates a

statutory or regulatory rule intended to prevent maritime accidents is

presumed to have caused the accident:

The liability for damages is upon the ship or ships whose

fault caused the injury. But when, as in this case, a ship

at the time of a collision is in actual violation of a statutory

rule intended to prevent collisions, it is no more than a

reasonable presumption that the fault, if not the sole cause,

was at least a contributory cause of the disaster. In such a

case the burden rests upon the ship of showing not merely

that her fault might not have been one of the causes, or

that it probably was not, but that it could not have been.

Such a rule is necessary to enforce obedience to the

mandate of the statute.

The Pennsylvania, 86 U.S. (19 Wall.) 125, 136 (1873).

In other words, the Pennsylvania Rule requires the violating vessel to

prove its violations could not have caused, or at least contributed to, the

damage. See Am. Dredging Co. v. Lambert, 81 F.3d 127, 130 (11th Cir. 1996)

(“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.” (citation omitted)); see generally Fischer v. S/Y NERAIDA, 508 F.3d

586, 593 (11th Cir. 2007). The Eleventh Circuit says, “The Pennsylvania Rule

is not a rule of liability, but shifts the burden of proof as to causation. This

burden is strict, but is not insurmountable.” Hersh v. United States, No. 20-

10926, 2022 WL 214842, at *10 (11th Cir. Jan. 25, 2022) (internal quotations

omitted).

The Pennsylvania Rule’s presumption is triggered when there is “(1)

proof by a preponderance of the evidence of violation of a statute or regulation

that imposes a mandatory duty; (2) the statute or regulation involved marine

safety or navigation; and (3) the injury suffered was of a nature that the statute

or regulation was intended to prevent.” In re Backcountry Outfitters, Inc., No.

3:06CV234-MCR-MD, 2008 WL 516792, at *7 (N.D. Fla. Feb. 22, 2008), aff’d,

294 F. App’x 578 (11th Cir. 2008) (citation omitted). The first element is at

issue.

Movants contend Plaintiffs violated Rules 5, 7, 16, and 18 of the United

States Coast Guard International Rules of Navigation, as recognized in 33

C.F.R. §§ 80-82.3 Further, according to Movants, Plaintiffs cannot show their

violations could not have caused the collision.

3 Both sides agree they were operating under the U.S. Coast Guard Navigational Rules,

International during the time in question.

Rule 5 states, “Every vessel shall at all times maintain a proper look-out

by sight and hearing as well as by all available means appropriate in the

prevailing circumstances and conditions so as to make a full appraisal of the

situation and of the risk of collision.” (Doc. 69 at 137). Movants argue that

Miss Amy neither posted a look-out while piloting the vessel, nor monitored its

navigational equipment and the direction of travel. For support, Movants rely

on the declaration of Jason Vance, a deckhand on the Miss Amy at the time of

the collision. (Doc. 62-1). Vance stated,

[Captain Swendsen] had the problematic autopilot engaged

and was facing away from the forward windows and toward

the back in the direction of the galley talking to Mr. Lee[,

another deckhand]. He was not looking forward out of the

wheelhouse windows nor was he watching the instruments

or radar while the F/V MISS AMY J was sailing forward

and when the collision occurred.

(Doc. 62-1 at 318-19, ¶8).

To counter Vance, Plaintiffs provide Captain Swendsen’s affidavit. (Doc.

69 at 18-20). He states he was on watch and saw the Southern Belle on his

radar and AIS shortly after he fixed a mechanical issue. (Doc. 69 at 19, ¶ 12).

He affirms that he “monitored and observed the course of Amy J and

determined a corrective course adjustment of 10 degrees to the starboard side

would avoid any possibility of collision,” he continued to monitor the Southern

Belle on the radar, and he made two more adjustments. (Doc. 69 at 19, ¶¶ 13,

15). But Captain Swendsen also admitted that he “left the steering house”

shortly before the collision. (Doc. 69 at 19, ¶ 16).

Because the Court must draw all reasonable inferences in Plaintiffs’

favor, it finds a genuine dispute of material fact exists over Rule 5. Based on

the record, the Court cannot say that Captain Swendsen failed to monitor his

navigation equipment, did not keep watch of the Southern Belle before the

collision, or did nothing to avoid the collision. Defendants argue Captain

Swenden’s ten-degree changes were too small of incremental changes, but offer

nothing other than their say so to explain why it was an unreasonable

maneuver to have taken.

On to Rule 7. It says, “Every vessel shall use all available means

appropriate to the prevailing circumstances and conditions to determine if risk

of collision exists. If there is any doubt such risk shall be deemed to exist.”

(Doc. 69 at 141). The next subsection says, “Proper use shall be made of radar

equipment if fitted and operational, including long-range scanning to obtain

early warning of risk of collision and radar plotting or equivalent systematic

observation of detected objects.” (Doc. 69 at 141). According to Movants, the

Miss Amy failed to see the collision risk with the Southern Belle because it

neither posted a lookout nor used, monitored, or answered its VHF radio,

radar, and navigational chart system. They also contend that Captain Phan

could not directly reach the Miss Amy through the AIS because its discrete

code did not display for him to make the call. That’s why, according to

Movants, Captain Phan used the radio.

Plaintiffs paint a different picture. They say that Captain Swendsen

observed the Southern Belle on the Miss Amy’s radar, monitored the situation,

and made three course changes to avoid a collision. (Doc. 69 at 19, ¶¶ 12-13,

15). Plaintiffs also point to the affidavit of Henderson, their corporate

representative, to challenge Movants’ contention they did not have a functional

AIS. (Doc. 69 at 16-17). Henderson states that “he inspected all operating

equipment, including but not limited to, AIS and it was properly functioning

immediately prior to the vessel’s departure.” (Doc. 69 at 16 at ¶ 4). Finally,

Plaintiffs point to Captain Phan’s testimony that the Southern Belle’s

electronic equipment was functional to cast doubt on his assertion that the

Miss Amy’s discrete code did not appear on his equipment. (Doc. 62-1 at 21:5-

10).

Drawing all reasonable inferences in Plaintiffs’ favor, a genuine dispute

of material fact exists over whether they violated Rule 7. Based on the

evidence, the Court cannot say—as a matter of law—the Miss Amy did not use

all means appropriate to determine whether it would collide with the Southern

Belle. Captain Swendsen testified to seeing the Southern Belle on his radar

and changing course to avoid a collision. And if communication over the

vessels’ AIS would have prevented the crash, each side says their system was

operational before the collision. The Court cannot resolve these material

factual disputes at this stage.

The final rules—16 and 18—work in tandem. Rule 18(a)(iii) requires a

power-driven vessel underway to “keep out of the way of” another “vessel

engaged in fishing.” (Doc. 69 at 159). Rule 16 says, “Every vessel which is

directed to keep out of the way of another vessel shall, so far as possible, take

early and substantial action to keep clear.” (Doc. 69 at 157). The Court need

not look past Rule 18 to know a factual dispute prevents finding a violation.

That’s because the parties disagree about whether the Southern Belle was

fishing during the collision. The dispute matters because if Southern Belle was

fishing, then the Miss Amy needed to steer clear of it.4 But the record is

unsettled. Here’s how it shakes out:

Vance, Miss Amy’s deckhand, says the Southern Belle had her nets in

the water and was actively fishing. (Doc. 62-1 at 318, ¶ 7). Captain Phan

confirms Vance. (Doc. 62-1 at 292, 44:16-21). But Captain Swendsen says the

opposite: “[I] had a clear and unobstructed vision of the incident, and it was

readily apparent Southern Belle did not have [fishing] nets deployed, the doors

4 The record is not clear if the parties dispute whether the Miss Amy was fishing at the time

of collision. Captain Phan and Vance testified the Miss Amy was not fishing. Captain

Swendsen, however, says he fixed the bilge pump, and, from there, the Miss Amy could fish

when the vessels collided. (Doc. 69 at 12). But the Court need not delve into whether the

Miss Amy was fishing because there’s enough of a material dispute on the Southern Belle

alone.

were not in the water, and the vessel was not actively shrimping at the time of

the collision.” (Doc. 69 at 19, ¶ 19). Because each side offers different evidence

on whether the Southern Belle was fishing, the Court cannot say the Miss Amy

was the give-way vessel and had it taken more action, the collision would not

have occurred. The Court simply cannot resolve this he-said, he-said, he-said

situation now—that’s for trial.

At bottom, the record is unclear whether Plaintiffs violated Rules 5, 7,

16, and 18 to trigger the Pennsylvania Rule. The Court thus denies summary

judgment on Movants’ counterclaims.

ii. Plaintiffs’ Negligence Claim Against Defendants

Next, Movants seek summary judgment on Plaintiffs’ negligence claim.

They argue that Plaintiffs have not adduced enough evidence to show they

acted negligently in causing the collision. They are right.

“In analyzing a maritime tort case, [courts] rely on general principles

of negligence law.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1336 (11th Cir.

2012) (citation omitted). For negligence, a plaintiff must prove “(1) the

defendant had a duty to protect the plaintiff from a particular injury; (2) the

defendant breached that duty; (3) the breach actually and proximately caused

the plaintiff’s injury; and (4) the plaintiff suffered actual harm.”

Id. (citing Zivojinovich v. Barner, 525 F.3d 1059, 1067 (11th Cir. 2008)).

To show Defendants’ negligence, Plaintiffs rely on “deposition testimony

of the Defendant and by way of the personal affidavit provided by” Captain

Swendsen. (Doc. 69 at 14). Yet Plaintiffs do not clarify whose deposition

testimony they rely on, let alone cite specific portions of any testimony that

points to Defendants’ negligence. And the same is true for Captain Swendsen.

The Court is unsure how his testimony proves negligence. This is especially

true when Plaintiffs only provide generic rhetoric that Defendants owed some

duty “stemming from the traditional concepts of prudent seamanship and

reasonable care, statutory and regulatory rules, and recognized customs and

uses.” (Doc. 69 at 14).

Best the Court can tell, Plaintiffs believe Defendants owed a duty to

protect against any collision because the Southern Belle was the give-way

vessel. Plaintiffs seem to rely on Rule 18(a)(i), which requires a power-driven

vessel to keep out of the way of “a vessel not under command,” to show the

breach of that duty. (Doc. 69 at 159). Plaintiffs elude that Captain Phan had

reason to assume the Miss Amy was not under command during the collision

because of its non-responsiveness to the Southern Belle’s radio calls and the

Southern Belle not using the AIS to make a direct call. So Plaintiffs maintain

the Southern Belle was the give way vessel and needed to act to keep clear.

But Plaintiffs offer no supporting case law or record citations to support why

Captain Phan should have assumed the Miss Amy was not under command.

Plaintiffs need more on summary judgment to show the Southern Belle didn’t

take sufficient action to avoid the collision. The Court thus grants Movants

summary judgment as to Plaintiffs’ negligence claim.

B. Movants’ Motion to Strike

Movants ask the Court to strike the affidavit of Plaintiff’s corporate

representative (Doc. 69 at 16-17) because the substantive statements are made

without personal knowledge and inadmissible at trial. (Doc. 72 at 4). Here

are the problematic statements:

• “the crew members aboard the Miss Amy J. during the collision were

experienced in the commercial fishing industry;”

• “after the collision the equipment was tested and inspected and was

fully functional and operating;” and

• “The AIS on the Amy J was transmitting its discrete code at the time

of the collision.”

(Doc. 69 at 16). Collectively, Movants say the statements misrepresent the

record, contradict his prior deposition testimony, are conclusory, are

speculative, and misleading. Plaintiffs disagree. But the Court need not

resolve this dispute because there are genuine issues of material fact in the

record outside the challenged statements in Henderson’s affidavit to warrant

denying summary judgment. The Court thus denies the Motion to Strike.

CONCLUSION

For the reasons explained, the Court grants in part and denies in part

Movants’ Motion for Summary Judgment (Doc. 62). The Court also denies

Movants’ Motion to Strike (Doc. 73). This action moves forward to a bench trial

on Movants’ negligence counterclaims against Plaintiffs.

Accordingly, it is now

ORDERED:

1. The Motion for Summary Judgment (Doc. 62) is GRANTED in part

and DENIED in part. The Motion is granted as to Plaintiffs’

negligence claim but is denied in all other respects.

2. The Motion to Strike the Affidavit of Dennis Henderson (Doc. 72) is

DENIED.

3. The Court sets an in-person status conference for June 7, 2022, at

11:30 a.m. The parties must come prepared to discuss, among other

things, dates for a bench trial during the July 2022 trial term.

DONE and ORDERED in Fort Myers, Florida on June 3, 2022.

UNITED STATES DISTRICT JUDGE

Copies: All Parties of Record

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