Kipp v. Amy Slate's Amoray Dive Ctr., Inc.

• Decision Date: 06 June 2018
• Docket Number: No. 3D17–316,3D17–316
• Citation: 251 So.3d 941
• Parties: Laurie KIPP, etc., Appellant, v. AMY SLATE'S AMORAY DIVE CENTER, INC., et al., Appellees.
• Court: Florida District Court of Appeals

251 So.3d 941

Laurie KIPP, etc., Appellant,

v.AMY SLATE'S AMORAY DIVE CENTER, INC., et al., Appellees.

No. 3D17–316

District Court of Appeal of Florida, Third District.

Opinion filed June 6, 2018.

Brais & Associates, P.A., and Keith S. Brais and Richard D. Rusak ; Keller & Bolz, LLP, and John W. Keller, III, and Sheyla Mesa, for appellant.

The Chartwell Law Offices, LLP, and Krista Fowler Acuña and Marcus G. Mahfood, for appellees.

Before EMAS, LOGUE, and LINDSEY, JJ.

LOGUE, J.

Laurie Kipp, as personal representative of the Estate of her husband, Steven Kipp, seeks review of the trial court's order dismissing her complaint against Amy Slate's Amoray Dive Center, Inc. and Edward Hall. In pertinent part, the complaint was brought under Florida's law of negligence and the Death on the High Seas Act (DOHSA), 46 U.S.C. §§ 30301 – 30308 (2015). The trial court determined that this case can only be brought under DOHSA in federal court. We reverse.

Background

According to the complaint, on November 12, 2015, Steven Kipp was working as crew on a scuba dive charter boat owned and operated by Amy Slate's Amoray Dive Center, Inc. and captained by Edward Hall. That evening, the vessel took customers for a night dive on the Benwood wreck. When adverse currents swept some surfacing divers as far as a half mile away, Kipp snorkeled out to shepherd them back to the boat. While doing so, Kipp suffered a heart attack and died. Kipp's widow filed suit on behalf of herself and their children against the dive center and the captain of the vessel.

The complaint contained six counts: (1) Jones Act negligence against the dive center;¹ (2) General maritime unseaworthiness against the dive center as owner of the vessel; (3) State tort negligence against the dive center; (4) DOHSA claim against the dive center; (5) State tort negligence against the captain; and (6) DOHSA claim against the captain.

The dive center and the captain each filed motions to dismiss contending the cause of action was controlled by DOHSA because the death occurred more than three nautical miles from shore. In response, Ms. Kipp argued that DOHSA does not apply because, as the complaint alleged, the death took place within Florida's territorial waters that extend beyond three nautical miles to the western edge of the Gulf Stream. The trial court took judicial notice that the wreck was located approximately 6.5 nautical miles from shore and granted the motions to dismiss because the death occurred more than three nautical miles from the coast and therefore was subject to DOHSA.² In dismissing the complaint, the trial court held DOHSA provides an exclusive remedy available only in federal court and therefore "this Court is precluded from reaching the merits of the remaining issues." Ms. Kipp timely appealed.

Analysis

The central issue in this appeal concerns whether DOHSA applies to a death that occurred more than three nautical miles from the coast of Florida, but still within Florida's territorial waters. On this point, this case presents an issue of pure statutory interpretation. On one hand, DOHSA expressly applies to deaths on the high seas more than three nautical miles from the shore of the United States. 46 U.S.C. § 30302. On the other hand, DOHSA by its plain terms, "does not affect the law of a State regulating the right to recover for death," and it "does not apply" to "waters within the territorial limits of a State." 46 U.S.C. § 30308(a) - (b).

For most coastal states, these two provisions do not conflict because their territorial waters do not extend beyond three nautical miles. But Florida's Atlantic boundary extends to three miles from the coast or to the shoreward edge of the Gulf Stream, whichever is greater. Art. II, § 1, Fla. Const. (1968).³ And the shoreward edge of the Gulf Stream often runs seven or more nautical miles from the coast.⁴

Congress ratified Florida's unusual boundaries, including its territorial waters, when it approved Florida's 1868 Constitution and re-admitted Florida to full representation in the House and Senate in the aftermath of the Civil War. See Act of June 25, 1868, Ch. 70, 40th Congress 2d Sess. (1868), 15 Stat. 73; Art. I, Fla. Const. (1868); United States v. States of Louisiana, Texas, Mississippi, Alabama & Florida, 363 U.S. 1, 125, 80 S.Ct. 961, 4 L.Ed.2d 1025, 1096 (1960), supplemented sub nom. United States v. Louisiana, 382 U.S. 288, 86 S.Ct. 419, 15 L.Ed.2d 331 (1965) ("Congress in 1868 approved [Florida's boundaries including its description of its territorial waters as set forth in Florida's 1868 Constitution], within the meaning of the 1867 Acts.").

Of course, the fact that Florida's Atlantic boundaries extend to the Gulf Stream does not necessarily mean that Florida's tort laws extend to the Gulf Stream. Florida itself may decide that particular Florida laws apply to less than the full extent of its territorial waters.⁵ Regarding torts, however, the reach of Florida law extends out to the full limits of Florida's constitutional boundaries, including its territorial waters, as we previously held in Benson v. Norwegian Cruise Line Ltd., 859 So.2d 1213, 1215 (Fla. 3d DCA 2003).

Benson involved an incident of medical malpractice that occurred 11 nautical miles from shore but landward of the Gulf Stream. At issue was whether the doctor, who was not a Florida resident, had committed a tort in Florida and therefore came within Florida's Long Arm Statute for purposes of personal jurisdiction. This court held he did. First, the court quoted from Article II, section 1 that, at the point where the St. Mary's River enters the Atlantic Ocean, Florida's boundary proceeds "due east to the edge of the Gulf Stream or a distance of three geographic miles whichever is the greater distance." Id. at 1215. It then noted that, according to the expert evidence, "[t]he ship was located 11.7 nautical miles east of Florida's coastline. The ship had not yet reached the edge of the Gulf Stream, which was 14 nautical miles east of the relevant portion of Florida's coastline on the day in question." Id.

The court concluded, "based on the boundary as stated in the Florida Constitution, the claimed incident of medical malpractice occurred within Florida's territorial boundaries." Id.; see also Fla. Dep't of Revenue v. New Sea Escape Cruises, Ltd., 894 So.2d 954, 962 (Fla. 2005) (citing Benson with approval for the proposition that "medical malpractice occurring on a cruise ship 11.7 miles off of Florida's coast occurred within Florida's territorial waters based on expert evidence establishing that the Gulf Stream was 14 nautical miles east of the relevant portion of Florida's coastline on the day in question").

Even if Florida tort law extends to the Gulf Stream boundary, Congress has the authority to curtail the reach of Florida law or limit rights granted by Federal law to less than the full extent of Florida's territorial waters as established in the Florida Constitution. For example, the Submerged Lands Act granted Florida the rights to the resources in the submerged lands off Florida's coast extending nine nautical miles from the Gulf coast and three geographic miles from the Atlantic coast. United States v. Fla., 425 U.S. 791, 96 S.Ct. 1840, 48 L.Ed.2d 388 (1976) (interpreting 43 U.S.C. § 1301, et. seq. ). The Submerged Lands Act recognized "the seaward boundaries of a State or its boundaries in the Gulf of Mexico or any of the Great Lakes as they existed at the time such State became a member of the Union, or as heretofore approved by the Congress." 43 U.S.C. § 1301(b). However, it further provided that "in no event shall the term ‘boundaries’ ... be interpreted as extending from the coast line more than three geographical miles into the Atlantic Ocean or the Pacific Ocean, or more than three marine leagues into the Gulf of Mexico." Id.

With this background in mind, we consider whether Congress, by the plain language employed in the DOHSA text, intended to limit Florida's wrongful death remedy to less than Florida's entire territory. As mentioned above, Congress provided that DOHSA applies to deaths on the high seas more than three nautical miles from the shore of the United States:

When the death of an individual is caused by wrongful act, neglect, or default occurring on the high seas beyond 3 nautical miles from the shore of the United States, the personal representative of the decedent may bring a civil action in admiralty against the person or vessel responsible. The action shall be for the exclusive benefit of the decedent's spouse, parent, child, or dependent relative.

46 U.S.C. § 30302 (emphasis added). At the same time, however, Congress clearly expressed its intent that DOHSA does not preempt state wrongful death statutes and DOHSA does not apply to the territorial waters of a State. In this regard, DOHSA also provides:

(a) State law.—This chapter does not affect the law of a State regulating the right to recover for death.

(b) Internal waters.—This chapter does not apply to the Great Lakes or waters within the territorial limits of a State.

46 U.S.C. § 30308 (emphasis added).

We reconcile this language by reading the provisions of section 30302 as establishing a general rule and section 30308 as providing specific exceptions. In other words, we construe these two sections, read in pari materia, as providing that DOHSA applies to deaths more than three nautical miles from shore except "within the territorial limits of a State" where it otherwise would "affect the law of a State regulating the right to recover for death."

This reading best comports with the plain meaning of the text. It gives proper effect to the three-nautical miles provision by recognizing that limit governs except where its application would affect a State's wrongful death remedy or cause DOHSA to apply within the territory of a state.

The contrary reading—that the three-mile limit applies regardless of whether it eliminates a state wrongful death remedy within the...