Opinion

In the Matter of Jason Palermo, as owner of the vessel BETTER TIMES II, a 1999 Sea Ray 500 Sundancer, IL 0587KX, in rem, including its owners and crew, Petitioning for Exoneration From or Limitation o

Court
District Court, N.D. Illinois
Filed
Sep 25, 2023
Cited by
0 cases
Authority
More cited than 21.1%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

IN THE MATTER OF JASON

PALERMO, as owner of the vessel

BETTER TIMES II, a 1999 Sea Ray

500 Sundancer, IL 0587KX, in rem,

No. 22-cv-05954

Petitioner,

Judge John F. Kness

v.

LARRY W. SCHAEDEL, as

independent administrator of the

ESTATE OF LANE G. SCHAEDEL,

deceased,

Respondent.

MEMORANDUM OPINION AND ORDER

This case arises out of state-court litigation over the untimely death of an

individual who drowned during a boating excursion in September 2020. Lane

Schaedel, one of several individuals aboard the vessel “Better Times II” as it was

underway in waters near Chicago, either fell or jumped out of the vessel; by the time

his fellow passengers noted Schaedel’s absence, Schaedel had perished. Respondent

Larry Schaedel, Lane Schaedel’s brother, later brought a negligence action against

the vessel’s owner, Petitioner Jason Palermo, in the Circuit Court of Cook, Illinois.

Palermo in turn brought the present admiralty action seeking to limit his liability

under the Limitation of Shipowner’s Liability Act (the “Limitation Act”).

Now before the Court is Respondent’s motion to dismiss for lack of subject

matter jurisdiction. (Dkt. 9.) Respondent contends that, because the Limitation Act

cannot apply here, the Court lacks jurisdiction over this admiralty claim.

For the reasons provided below, Respondent’s state law claim alleges bases of

negligence that, if accepted by the state court, would necessarily demonstrate

Petitioner’s culpability for the events that led to Schaedel’s death. As set forth in

applicable Seventh Circuit precedent, that fact takes this case out of the ambit of the

Limitation Act, as there is no situation in which the Limitation Act could apply. And

because the Limitation Act cannot apply, this case must be dismissed: either because

the Court lacks jurisdiction, or because Petitioner has failed to state a claim on which

relief can be granted. Respondent’s motion to dismiss is therefore granted.

I. BACKGROUND

This case arises out of a boating accident on Lake Michigan in September 2020.

Lane G. Schaedel drowned after he either fell or jumped off of Petitioner Jason

Palermo’s boat. Respondent Larry W. Schaedel, as administrator of Lane Schaedel’s

estate, sued both Palermo and Wesley Murphy, who operated of the boat during the

incident, for damages in an Illinois court under the Illinois Survival and Wrongful

Death Acts. (Dkt. 9 at 7–8.) In response, Petitioner filed the present action seeking

exoneration from, or limitation of, his liability under the Limitation of Shipowner’s

Liability Act (Limitation Act)1, 46 U.S.C. § 30501 et seq. Respondent has moved to

1 As Judge Crabb suggested in her dissent from a decision of the Court of Appeals (Judge

Crabb was sitting by designation), the Limitation Act may be ill-suited to claims concerning

personal pleasure-craft. See Joyce v. Joyce, 975 F.2d 379, 387 (7th Cir. 1992) (Crabb, J.,

dissenting). Congress passed the Limitation Act “to encourage ship-building and to induce

capitalists to invest money in this branch of industry,” Norwich Co. v. Wright, 80 U.S. 104,

121 (1871), and to “level the playing field” of the commercial shipping industry compared to

dismiss the petition for lack of subject-matter jurisdiction.

A. The Incident

Petitioner is the owner of a boat named Better Times II, which is a motor vessel

registered in Illinois. (Dkt. 1 ¶¶ 1–3.) On September 6, 2020, Better Times II was

operating in Lake Michigan, in and around Chicago and Hammond, Indiana.

Petitioner, Murphy, and Schaedel were onboard with a group of six other people,

including Schaedel’s fiancée, Melissa Navarro. (Id. ¶ 3.)

At some point during the cruise, Schaedel disappeared from the boat. It is not

clear whether he jumped from the boat or fell, but the other passengers did not

immediately notice Schaedel’s absence. When they did, the passengers searched for

Schaedel, found him in the water, and attempted rescue procedures. Schaedel,

however, was deceased. (Id. ¶¶ 12–14.)

B. Procedural History

On September 6, 2022, Respondent sued Petitioner and Murphy in the Circuit

Court of Cook County seeking damages for Schaedel’s death. In that state case,

Respondent alleges that both Petitioner and Murphy were negligent and that their

negligence caused Schaedel’s death. Respondent bases his allegations of Petitioner’s

negligence on several grounds, including permitting the boat to operate in dangerous

conditions, negligent entrustment, failure to provide sufficient safety devices to the

European countries with similar limitation statutes. Joyce, 975 F.2d at 383–84 (citing New

Jersey Steam Navigation Co. v. Merchant’s Bank, 47 U.S. 344 (1848). Those justifications are

not apparent in this case, which does not concern commercial shipping. But for purposes of

this decision, the Court assumes that the Limitation Act applies to claims involving personal

pleasure craft.

passengers, and failure to provide reasonable rescue care. (Id. ¶ 19; Dkt. 9-1 ¶¶ 17–

26.)

On October 28, 2022, Petitioner filed this action seeking protection under the

Limitation Act. Petitioner seeks exoneration from liability for claims arising out of

the September 6, 2020 incident, or, in the alternative, that his liability be limited to

the value of his boat, which he estimates to be $165,000. (Dkt. 1 ¶¶ 8, 9, 28.)

Respondent has moved to dismiss the case for lack of subject matter jurisdiction,

arguing that the Limitation Act does not apply to these circumstances. (Dkt. 9 at 2.)

II. LEGAL STANDARD

A motion under Rule 12(b)(1) challenges the Court’s subject matter jurisdiction

over a case. Motions to dismiss for lack of subject matter jurisdiction under Rule

12(b)(1) “are meant to test the sufficiency of the complaint, not to decide the merits

of the case.” Ctr. For Dermatology & Skin Cancer Ltd. v. Burwell, 770 F.3d 586, 588

(7th Cir. 2014). When considering a Rule 12(b)(1) motion, the Court accepts as true

all well-pleaded factual allegations and draws all reasonable inferences in favor of

the plaintiff. Id. But the plaintiff bears the burden of proving that the jurisdictional

requirements have been met. Id.

Conversely, to the extent the question is whether Petitioner has stated a viable

claim,2 each complaint “must contain sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). These

2 See Section III(B) below addressing the Seventh Circuit’s analysis in Joyce of the

jurisdiction-versus-failure to state a claim question.

allegations “must be enough to raise a right to relief above the speculative level.”

Twombly, 550 U.S. at 555. Put another way, the complaint must present a “short,

plain, and plausible factual narrative that conveys a story that holds together.”

Kaminski v. Elite Staffing, Inc., 23 F.4th 774, 777 (7th Cir. 2022) (cleaned up). In

evaluating a motion to dismiss, the Court must accept as true the complaint’s factual

allegations and draw reasonable inferences in the plaintiff’s favor. Iqbal, 556 U.S. at

678. But even though factual allegations are entitled to the assumption of truth, mere

legal conclusions are not. Id. at 678–79.

III. DISCUSSION

A. The Limitation Act Does Not Apply to this Case

Of central importance to Respondent’s motion to dismiss is whether the

Limitation Act gives this Court the power to limit Petitioner’s liability for the

negligent acts that Respondent alleges Petitioner committed. Under the

circumstances presented by this dispute, the Limitation Act does not, for the reasons

that follow, provide that authority.

Under the Limitation Act, a shipowner can file an admiralty action in federal

court to limit the shipowner’s potential liability “to the value of the vessel and

pending freight.” 46 U.S.C. § 30523(a). Claims subject to limitation under the

Limitation Act include those involving “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.” 46 U.S.C. § 30523(b). “Privity” means

“some personal participation of the owner in the fault or negligence which caused or

contributed to the loss or injury.” Coryell v. Phipps, 317 U.S. 406, 411 (1942). And

“knowledge” means “knew or had reason to know.” Joyce, 975 F.2d at 386.

In effect, the Limitation Act protects “innocent shipowners and investors who

were sued for damages caused through no fault or neglect of their own.” Great Lakes

Dredge & Dock Co. v. City of Chicago, 3 F.3d 225, 231 (7th Cir. 1993). Shipowners

remain liable for their own direct fault or negligence. See Am. Car & Foundry Co. v.

Brassert, 289 U.S. 261, 264 (1933).

Respondent argues that this case is most analogous to Joyce. In Joyce, a 1992

decision of the Seventh Circuit, an injured pleasure boat passenger sued the boat’s

owner for negligently entrusting the boat to another individual who was recklessly

driving the boat when the passenger was seriously injured. 975 F.2d at 381. The

owner later petitioned the federal court to limit the owner’s liability under the

Limitation Act. Id. But the district court dismissed the case for lack of subject matter

jurisdiction and explained that the passenger’s allegations relating to the tort of

negligent entrustment made it impossible for the Limitation Act to apply. Id. at 382.

In affirming, the Seventh Circuit concluded that if a shipowner “knows enough to be

liable for negligent entrustment, he knows too much to be eligible for limited liability

under the [Limitation] Act.” Id. at 385. Dismissal of the case was therefore warranted

because under either possible scenario—no negligence (so no liability to limit), or

negligence with knowledge—the Limitation Act could not apply. Id.

Petitioner disagrees that Joyce controls and instead argues that this case is

more analogous to In re Kothe, 2017 WL 4535962 (N.D. Ill. 2017). In Kothe, sailboat

owner and Limitation Act petitioner Patricia Kothe entered into a boat ownership

time-share agreement with Daniel Brown. Id. at *8. On the day in question, Brown,

Kothe, and others sailed the boat during rough weather; while Kothe was at the helm,

Brown fell through an allegedly poorly maintained lifeline at the ship’s bow and into

the lake. Id. at *9. Kothe attempted to rescue Brown, but Brown died from drowning.

Id. at *9–10. Brown’s estate brought a wrongful death action in state court, alleging

“numerous negligent omissions, some pertaining to [Kothe’s] long-term maintenance

of the boat, others pertaining to the pre-departure investigation on the day of the

incident, and others related to [Kothe’s] actions once Brown fell in the water.” Id. at

*20.

Kothe filed a limitation of liability claim in federal court. Given that Kothe

shared ownership with others and the record was unclear as to who bore certain

maintenance responsibilities, the court held that the petitioner’s privity or knowledge

of the alleged negligence was not “clearly an undisputed issue” such that “limitation

[would be] impossible for Petitioner [Kothe].” Id. at *19–20. As a result, the Kothe

court denied the estate’s motion for summary judgment. Id. at *19.

With due respect to Petitioner’s argument, Joyce controls over Kothe.

Respondent’s substantive allegations establish that the alleged negligence that

caused Schaedel’s death could not have occurred—if it even occurred at all—without

Petitioner’s privity or knowledge. This fact alone distinguishes this case from Kothe,

where a fact-finder could have found that the negligence alleged, including improper

long-term maintenance, might have occurred without Kothe’s privity or knowledge.

In Joyce, the Seventh Circuit conducted its Limitation Act analysis by first

looking to the character of the state law doctrines under which liability could be

found. 975 F.2d at 385. More specifically, the Seventh Circuit analyzed the tort of

negligent entrustment to determine whether that form of negligence could have

occurred without the shipowner’s privity or knowledge. Id. Joyce concluded that

negligent entrustment, by its own doctrinal definition, could not occur without the

shipowner’s knowledge. Id. As a result, either the alleged injury was not a result of

negligent entrustment and therefore there would be no liability to limit, or it was a

result of negligent entrustment of which the owner must have, by definition, had

knowledge. Id. Because the Limitation Act could not apply in any way, the Seventh

Circuit held that the district court was correct in dismissing the case for want of

jurisdiction. Id.

Petitioner argues that the precedential value of Joyce is limited to

Respondent’s allegation of negligent entrustment. Not so. Negligent entrustment was

simply the specific allegation of negligence that the Seventh Circuit in Joyce had

before it; Joyce’s analysis of how claims of negligence fall into (or out of) Limitation

Act coverage predominated. It is that analysis that applies here.

Applying Joyce to this case requires dismissal. Respondent alleges that

Petitioner was negligent in that Petitioner:

a. Permitted the Better Times II to operate in dangerous weather

conditions;

b. Permitted the Better Times II to leave the Hammond Marina

pier in dangerous weather conditions;

c. Entrusted the operation of the Better Times II to an operator

who lacked sufficient experience;

d. Entrusted the operation of the Better Times II to an operator

who lacked sufficient training;

e. Failed to have safety devices for all passengers;

f. Failed to train the operator of the boat;

g. Failed to supervise the operation of the Better Times II; and/or

h. Failed to procure rescue care for [Schaedel] after he fell off the

Better Times II.

(Dkt. 9 at 7–8.)

Each of these predicates is directed to Petitioner’s own conduct. Petitioner

either did or did not permit the Better Times II to operate in dangerous weather

conditions. If he did not, there is no negligence and therefore no liability for this Court

to limit. If he did, he must have done so with privity or knowledge: “permit[ing]” by

definition requires personal participation. As with the tort of negligent entrustment

at issue in Joyce, there is no scenario under which the Limitation Act could apply. It

would have been impossible for Petitioner to have permitted operation in dangerous

weather without knowing he was doing so or personally participating in the

permission.

Respondent’s allegation that Petitioner negligently permitted the Better Times

II to operate in dangerous weather conditions, therefore, cannot sustain an action for

Limitation Act protection; neither can Respondent’s allegation that Petitioner

permitted the boat to leave the Hammond Marina pier in dangerous weather

conditions. Respondent’s allegations that Petitioner was negligent in entrusting the

operation of the boat to an operator lacking sufficient experience and training sound

in negligent entrustment and fall under Joyce. Respondent’s allegation that

Petitioner was negligent in failing to provide sufficient safety devices is similar to the

allegation of permitting the boat to leave in bad weather, in that either Petitioner did

not fail to provide sufficient safety devices, and so liability for Schaedel’s death could

not arise from this basis, or he did fail to provide safety devices—negligence of which

he should have known as owner and passenger on the boat—and the Limitation Act

would not apply. Respondent’s allegation that Petitioner was negligent in failing to

procure rescue care similarly does not allow protection under the Limitation Act.3

Respondent’s allegations of Petitioner’s failure to train or supervise the

operator of the boat cannot implicate the Limitation Act because those doctrines also

require privity or knowledge. In negligent training and supervision claims, the

plaintiff “must prove that the employer was itself negligent. The plaintiff must prove

the existence of a duty on the part of the employer to the injured party, a breach of

that duty, and an injury proximately caused by the breach.” Nat’l R.R. Passenger

Corp. v. Terracon Consultants, Inc., 13 N.E.3d 834, 839–40 (Ill. App. Ct. 2014)

(cleaned up). Analysis of breach in either of these claims would require an analysis of

the personal participation—i.e., privity—of the Petitioner: questioning the sufficiency

of Petitioner’s training and supervision of Murphy requires a review of Petitioner’s

3 Kothe recognized that the Fifth Circuit—and perhaps even the Seventh Circuit in

Joyce—established that “ ‘when an owner is in control of and operating his pleasure craft he

has privity or knowledge with respect to its operation.’ ” Kothe, U.S. Dist. LEXIS 168239, at

*17 (quoting Fecht v. Makowski, 406 F.2d 721, 722 (5th Cir. 1969). But because Kothe dealt

with allegations of negligence off the boat and at an earlier time, it declined to extend Fecht

to cover all negligence, regardless of time or place, so long as the owner was onboard at the

time of the incident. There is no such distinction here. Each allegation of negligence is

bounded by time and location to the incident leading to Schaedel’s unfortunate death.

acts taken as part of that training and supervision. Either Petitioner met the

standard of care and thus did not cause any compensable harm, or Petitioner

breached by failing to adequately train or supervise; either outcome precludes

application of the Limitation Act.

In short, Respondent’s state-law complaint alleges bases of direct negligence—

negligence that cannot have occurred without Petitioner’s privity or knowledge.

Petitioner himself acknowledges that “the [Respondent’s state law] claims against

[Petitioner] include multiple claims of direct negligence.” (Dkt. 17 at 3.) And “[f]or his

own fault, neglect and contracts the owner remains liable.” Brassert, 289 U.S. at 264.

As a result, the Limitation Act cannot apply in this case.

B. Dismissal based on lack of Subject Matter Jurisdiction

Jurisdiction, as the Supreme Court has observed, is a word of many meanings.

See Wilkins v. United States, 143 S. Ct. 870, 877 (2023) (warning federal courts about

misusing the term “jurisdictional” to refer to “nonjurisdictional prescriptions”). For

an issue to be jurisdictional, it must be within the realm of requirements that a

plaintiff must complete or exhaust before filing suit. Otherwise, the claim falls within

the category of non-jurisdictional claim-processing rules, which seek to promote the

orderly progress of litigation by requiring the parties to take certain procedural steps

at certain specified times. Fort Bend County v. Davis, 139 S. Ct. 1843, 1849 (2019).

To help delineate this jurisdictional boundary, the Supreme Court has instructed the

federal courts to treat a procedural requirement as jurisdictional only if Congress

clearly states that it is. Arbaugh v. Y & H Corp., 546 U.S. 500, 515 (2006).

Respondent’s motion to dismiss for lack of jurisdiction assumes that the

Limitation Act’s protection is jurisdictional. But the statute itself does not clearly

state that it is meant to be a jurisdictional threshold. In considering subject matter

jurisdiction, Joyce did not proceed by explicitly referring to the text of the Limitation

Act. Joyce instead merely explained why the Limitation Act could not apply. That

circumstance, the Seventh Circuit explained, was enough to uphold the dismissal.

Joyce questioned whether inapplicability of the Limitation Act should be

characterized as a jurisdictional defect. 975 F.2d at 383 n.3. But it nevertheless

upheld the dismissal because the district court held that “the claim asserted

here . . . is so insubstantial on its face as to warrant a dismissal on the ground of lack

of jurisdiction.” Id. (citing cases holding that complaints without merit may be

dismissed on jurisdictional grounds). And “even if the district court was wrong in

characterizing its action as a dismissal for want of jurisdiction . . . [,] we nevertheless

would sustain its disposition of the case” because “ ‘even after [any] proposed

amendment, the complaint as a matter of law fails to state a claim upon which relief

can be granted.’ ” Id. at 386 n.7 (quoting Shockley v. Jones, 823 F.2d 1068, 1073 (7th

Cir. 1987)).

A shipowner “has the ultimate burden of proving lack of privity or knowledge

in federal court.” In re McCarthy Bros. Co., 83 F.3d 821, 827 (7th Cir. 1996); see also

Coryell, 317 U.S. at 409; In re Oil Spill by the Amoco Cadiz, 954 F.2d 1279, 1303 (7th

Cir. 1992). Petitioner’s complaint does not plausibly allege lack of privity or

knowledge. Where the shipowner “fails to establish lack of privity or knowledge, the

federal court lacks the power under the Limitation Act to limit his liability, and the

federal court must relinquish exclusive jurisdiction and allow the Respondent to

proceed in state court.” McCarthy Bros., 83 F.3d at 827.

Supreme Court jurisprudence on jurisdiction has evolved post-Joyce. But Joyce

remains the most on-point, precedential case on the issue before the Court, and that

decision explains that a court can do nothing more than dismiss the case if the

pleadings make clear that the Limitation Act cannot apply. That is the circumstance

here. Accordingly, Respondent’s motion to dismiss is granted.

IV. CONCLUSION

Because the negligence alleged by Respondent in an Illinois court could not

have occurred without Petitioner’s privity or knowledge, the Limitation Act cannot

apply. Respondent’s motion to dismiss (Dkt. 9) is therefore granted.

SO ORDERED in No. 22-cv-05954.

Date: September 25, 2023 _ LU) Kame

JO F. KNESS

United States District Judge

4 Because this dismissal is based on Joyce, which affirmed the dismissal of a Limitation

Act suit for lack of subject matter jurisdiction, the present dismissal is without prejudice.

See, e.g., Balle v. Kennedy, 73 F.4th 548, 560 (7th Cir. 20238).

13

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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