Caldwell v. Sey. Ltd.

• Jurisdiction: United States,Federal
• Court: U.S. District Court — Southern District of Florida
• Writing for the Court: PANAYOTTA AUGUSTIN-BIRCH UNITED STATES MAGISTRATE JUDGE
• Docket Number: 23-CV-61267-WILLIAMS/AUGUSTIN-BIRCH
• Decision Date: 14 February 2024
• Parties: SANDRA CALDWELL and NANCY NEWBOLD, Plaintiffs, v. SEYCHELLES LIMITED, LLC, et al., Defendants.
• topic: Contracts,Admiralty,Insurance Law,Civil Procedure

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SANDRA CALDWELL and NANCY NEWBOLD, Plaintiffs, v. SEYCHELLES LIMITED, LLC, et al., Defendants.

No. 23-CV-61267-WILLIAMS/AUGUSTIN-BIRCH

United States District Court, S.D. Florida

February 14, 2024

REPORT AND RECOMMENDATION ON DEFENDANT SEYCHELLES LIMITED, LLC's MOTIONS TO DISMISS [DE 15]; [DE 28]

PANAYOTTA AUGUSTIN-BIRCH UNITED STATES MAGISTRATE JUDGE

This cause comes before the Court on Defendant Seychelles Limited LLC's Motions to Dismiss. DE 15; DE 28. The Honorable Kathleen M. Williams, United States District Judge, referred both Motions to the undersigned United States Magistrate Judge for a report and recommendation. DE 16; DE 29. Plaintiffs Sandra Caldwell and Nancy Newbold have filed a response to Defendant Seychelles' Motion to Dismiss, DE 25, and Defendant Seychelles has filed a reply. DE 27. The Court permitted Plaintiffs to file a surresponse to Defendant Seychelles' reply, DE 33, and Plaintiffs filed a surresponse. DE 37. Defendant Tammy Fisher has filed a response to Defendant Seychelles' Motion to Dismiss, DE 30, and Defendant Seychelles has filed a reply. DE 31. The Court has carefully considered the Motions, the record, and is otherwise fully advised. For the reasons set forth below the Court RECOMMENDS for Defendant Seychelles' Motions to be GRANTED.

I. Background

For a family vacation, Defendant Tammy Fisher chartered a Vessel called “Triple Net” and its Tender named “T/T Triple Net”^[1] from Defendant Seychelles Limited, LLC, and Defendant Fisher invited Plaintiffs Sandra Caldwell and Nancy Newbold to tag along. DE 1 ¶¶ 18-19. During the charter, the Vessel was captained by Hayden Smith, and Robert Muller served as one of the crew members of the Vessel. Id. ¶¶ 21-22. While the Vessel was anchored near Key Biscayne, Florida, Defendant Fisher and Plaintiffs were transported to Key Biscayne aboard the Tender driven by Mr. Muller. Id. ¶¶ 24-28. On the way back to the Vessel from Key Biscayne, Mr. Muller was driving the Tender at, as Plaintiffs allege, an unsafe speed when a large yacht created a wake in front of the Tender. Id. ¶¶ 30-32. Although Mr. Muller allegedly had time to reduce the Tender's speed before crossing the wake, he did not do so, and the Tender slammed into the wake, causing Plaintiffs to be violently launched into the air before landing back on the deck and seating of the Tender. Id. ¶¶ 33-34. As a result of this incident, Plaintiffs aver they suffered serious bodily injuries. Id. ¶¶ 35-38. Asserting that Defendant Fisher, Defendant Seychelles, and the in rem Defendants Triple Net and T/T Triple Net (collectively, the “in rem Defendants”) were all jointly and severally liable for Plaintiffs' injuries under general maritime law, id. ¶ 39, Plaintiffs filed a six-count Complaint. DE 1.

In their Complaint, Plaintiffs individually asserted a negligence claim against each of the Defendants. Operating under the allegation that Defendant Seychelles time-chartered the Vessel to Defendant Fisher, Plaintiff Caldwell alleged that Defendant Seychelles was liable for her injuries in Count 1 and that the in rem Defendants were liable for her injuries in Count 2. Id. ¶¶ 45-63. Likewise, Plaintiff Newbold alleged that Defendant Seychelles was liable for her injuries in Count 3 and that the in rem Defendants were liable for her injuries in Count 4. Id. ¶¶ 64-82. Alternatively, assuming arguendo that Defendant Fisher bareboat chartered the Vessel, Plaintiff Caldwell alleged that Defendant Fisher was liable for her injuries in Count 5, id. ¶¶ 83-92, and Plaintiff Newbold asserted that Defendant Fisher was liable for her injuries in Count 6. Id. ¶¶ 93102.

In response to the Complaint, Defendant Seychelles filed a Motion to Dismiss for Failure to State a Claim. DE 15. For her response, Defendant Fisher filed an answer, which included two cross-claims against Defendant Seychelles. DE 19. Specifically, Defendant Fisher alleged that the charter agreement between her and Defendant Seychelles was a time-charter, not a bareboat charter. Id. at 11 ¶ 8. Therefore, Defendant Fisher denied liability for Plaintiffs' injuries. However, if she were to be found liable, Defendant Fisher raised a common law indemnity cross-claim and a contribution cross-claim against Defendant Seychelles. Id. at 12-14. Defendant Seychelles responded to Defendant Fisher's cross-claims with a Motion to Dismiss for Failure to State a Claim. DE 28. Each of Defendant Seychelles' Motions to Dismiss will be examined in turn.

II. Defendant Seychelles' Motion to Dismiss Plaintiffs' Complaint

In its Motion to Dismiss Plaintiffs' Complaint, Defendant Seychelles contends that Counts 1 and 3 against itself must be dismissed because Defendant Fisher's charter of the Vessel was a bareboat charter, as opposed to the time charter Plaintiffs alleged as a possibility in their Complaint. DE 15 at 7-16. Additionally, Defendant Seychelles, as the owner of the Vessel and its Tender, argues that Counts 2 and 4 against the in rem Defendants must be dismissed for lack of subject matter jurisdiction because Plaintiffs failed to allege that the Vessel or its Tender are within this district or will be while the action is pending. Id. at 16-17. Both of these arguments have merit.

A. Motion to Dismiss Standard

Federal Rule of Civil Procedure 12 empowers a court to dismiss a pleading for, inter alia, lack of subject-matter jurisdiction and failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(1), (6). “Attacks on subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) come in two forms”: facial attacks and factual attacks. Lawrence v. Dunbar, 919 F.2d 1525, 152829 (11th Cir. 1990). “‘Facial attacks' on the complaint ‘require[] the court merely to look and see if [the] plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion.'” Id. at 1529 (quoting Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980)). “‘Factual attacks,' on the other hand, challenge ‘the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits are considered.'” Id.

Dismissal for failure to state a claim under Rule 12(b)(6) “is appropriate when a plaintiff fails to allege facts sufficient ‘to raise a right to relief above the speculative level' or fails to ‘state a claim to relief that is plausible on its face.'” Jacob v. Mentor Worldwide, LLC, 40 F.4th 1329, 1334 (11th Cir. 2022) (quoting Bell Atl. Corp v. Twombly, 550 U.S. 544, 555-56 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). When ruling on a Rule 12(b)(6) motion to dismiss, courts must accept a pleading's factual allegations as true. See id. at 679. However, “conclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal.” Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002); Associated Builders, Inc. v. Ala. Power Co., 505 F.2d 97, 100 (5th Cir. 1974) (“Conclusory allegations and unwarranted deductions of fact are not admitted as true, especially when such conclusions are contradicted by facts disclosed by a document appended to the complaint.” (internal citation omitted)). Moreover, “when the exhibits contradict the general and conclusory allegations of the pleading, the exhibits govern.” See Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1206 (11th Cir. 2007); see also Leader Glob. Sols., LLC v. Tradeco Infraestructura, S.A. DE C.V., 155 F.Supp.3d 1310, 1316 (S.D. Fla. 2016) (“If the documents contradict the general and conclusory allegations of the pleading, then the documents govern.”); Staggers v. Int'l Longshoremen's Ass'n, No. 20-CV-24202, 2021 WL 293209, at *4 (S.D. Fla. Jan. 28, 2021) (finding contradictory exhibit controlled over factual allegation).

B. Bareboat vs. Time Charter

Under a bareboat charter, which is sometimes referred to as a demise, “full possession and control of the vessel are delivered up to the charterer for a period of time.” Reed v. S.S. Yaka, 373 U.S. 410, 412 (1963) (footnotes omitted); see also Walker v. Braus, 995 F.2d 77, 81 (5th Cir. 1993) (“Under a bareboat or demise charter . . . full possession and control of the vessel is transferred to the charterer.... Under a bareboat or demise charter the vessel is transferred without crew, provisions, fuel or supplies, i.e. ‘bareboat'; and when, and if, the charterer operates the vessel he must supply also such essential operating expenses.”). “It has long been recognized in the law of admiralty that for many, if not most, purposes the bareboat charterer is to be treated as the owner, generally called owner pro hac vice.” Reed, 373 U.S. at 412 (footnotes omitted). Therefore, “barring explicit statutory exemption, the bareboat charterer is personally liable” for injuries occurring during the charter. See id.; see also Walker, 995 F.2d at 81 (“Because the charter's personnel operate and man the vessel during a demise charter, the charterer has liability for any and all casualties resulting from such operation and therefore provides insurance for such liability.”).

On the other hand, a time charter does not deliver total control of a vessel to the charterer. Gatewood v. Atl. Sounding Co., No. 3:06-CV-41J32HTS, 2007 WL 1526656, at *6 (M.D Fla. May 23, 2007) (citing Reed, 373 U.S. at 412; Guzman v. Pichirilo, 369 U.S. 698, 700 (1962)); see also Jolly v. Hoegh Autoliners Shipping AS, 546 F.Supp.3d 1105, 1110 n.4 (M.D. Fla. 2021) (“A time charter does...