United States
Court of Appeals,
Eleventh Circuit
No. 98-5704.
Blaine SHULTZ, Personal
Representative for the Estate of Patricia Shultz, Plaintiff-Appellant,
v.
FLORIDA KEYS DIVE CENTER,
INC., a Florida corporation, Gregory Hessinger, et al., Defendants-Appellees.
Aug. 30, 2000.
Appeal from the United States District
Court for the Southern District of Florida. (No. 97-10047-CV-JCP),
James C. Paine, Judge.
Before TJOFLAT, RONEY and FAY, Circuit
Judges.
PER CURIAM:
Plaintiff Blaine Shultz sued Florida
Keys Dive Center, Inc. ("Dive Center") and its employees
Gregory Hessinger and John Brady and owners Pamela Timmerman
and Thomas Timmerman for the wrongful death of his wife, Patricia
Shultz, who died of an apparent drowning while scuba diving on
a trip conducted by the Dive Center. The district court granted
summary judgment for defendants, relying on a release of liability
signed by Patricia Shultz, which the court determined to be valid
under Florida law. We affirm the judgment, concluding that the
district court correctly held that the liability release is not
invalidated by an admiralty statute, 46 U.S.C. app. § 183c(a)
(1994). Further, we conclude that it is not invalidated by the
admiralty common law.
Briefly, the facts are as follows:
The day before her dive, Patricia Shultz signed a document releasing
defendants from liability for all claims, even for those arising
out of negligence or gross negligence. The next day, the Dive
Center's boat, the Goody III, transported Patricia and Blaine
Shultz and their 13-year-old daughter, all certified divers,
to the location of their dive. Not long after entering the water,
the Shultzes surfaced, but found themselves too far away to swim
back to the Goody III. The Goody III did not pick them up immediately,
because it was waiting for other divers still in the water to
reboard. The divemaster from the Goody III swam out to help the
Shultzes, but Patricia Shultz became unconscious before she was
picked up by a boat, and she died.
Plaintiff filed a lawsuit in federal
district court, invoking the court's diversity jurisdiction.
He claimed that defendants had been negligent in, among other
things, not warning the Shultzes of the strength of the current,
not sending the Goody III immediately to retrieve the Shultzes
from the water, not outfitting the Goody III with a small boat
that could be used to pick up divers, not bringing rescue devices
to Patricia Shultz, and not being attentive to Patricia Shultz's
condition in the water. The court granted summary judgment for
defendants based upon the liability release, which it determined
to be valid under Florida law.
Unless the liability release signed
by Patricia Shultz is invalidated under either 46 U.S.C. app.
§ 183c(a) or admiralty common law, the release is unquestionably
valid and bars plaintiff's claim. 46 U.S.C. app. § 183c(a)
provides:
It shall be unlawful for the manager,
agent, master, or owner of any vessel transporting passengers
between ports of the United States or between any such port and
a foreign port to insert in any rule, regulation, contract, or
agreement any provision or limitation (1) purporting, in the
event of loss of life or bodily injury arising from the negligence
or fault of such owner or his servants, to relieve such owner,
master, or agent from liability, or from liability beyond any
stipulated amount, for such loss or injury, or (2) purporting
in such event to lessen, weaken, or avoid the right of any claimant
to a trial by court of competent jurisdiction on the question
of liability for such loss or injury, or the measure of damages
therefor. All such provisions or limitations contained in any
such rule, regulation, contract, or agreement are declared to
be against public policy and shall be null and void and of no
effect.
In affirming the district court's
decision that § 183c(a) does not invalidate a scuba diving
release otherwise valid under state law, we follow the consistent
lead of the few cases addressing the release issue under facts
similar to this one. There are no federal appellate cases. In
addition to this case, every district court and state court presented
with the issue, however, has upheld such releases in recreational
scuba diving cases such as this one, based on either the lack
of application of § 183c(a) or based on a lack of admiralty
jurisdiction.
The release was upheld as not meeting
the requirements of § 183c(a) in the case at bar and in
Cutchin v. Habitat Curacao, 1999 AMC 1377, 1380-81 (S.D.Fla.1999)
and in Thompson v. ITT Sheraton Corp., No. 97-10080, at
4-7 (S.D.Fla. Feb. 2, 1999). The one case holding that §
183c(a) did apply to invalidate a scuba diving liability
release involved a scuba diver who was struck by the propeller
of another boat. See Courtney v. Pacific Adventures, Inc.,
5 F.Supp.2d 874, 878-80 (D.Haw.1998). The application of §
183c(a) to the release in Pacific Adventures has been
criticized. See Jeffrey T. Woodruff, Please Release
Me--The Erroneous Application of 46 U.S.C.App. § 183c to
Scuba Diving Releases in Courtney v. Pacific Adventures,
Inc., 23 Tul. Mar. L.J. 473 (1999). Even in Pacific Adventures,
however, the court apparently would have upheld the release in
this case based on a lack of admiralty jurisdiction. The court
reasoned that the allegations "involve[d] the operation
of a vessel," 5 F.Supp.2d at 878, but then opined that if
plaintiff's injuries "were related solely to scuba diving
and had no relationship to the operation or maintenance of a
vessel, then there would be no admiralty jurisdiction."
5 F.Supp.2d at 880 n. 5.
The district court in the case at
bar relied on two other cases, which it cited as Keith v.
Knopick, CL 95-3845 AF, Palm Beach County, Florida (March
18, 1997) and Mudry v. Captain Nemo, Case No. 94-0265(1),
2nd Cir. Hawaii (February 13, 1996), stating that they determined
§ 183c(a) or a similar state law statute to be inapplicable
to a scuba diving liability release. Those two cases, however,
are unpublished, and have not been made available to us.
These cases are fact-specific. We
have been cited to no case with facts similar to this one--where
the injury, an apparent drowning, resulted strictly from a recreational
scuba diving accident-that held a release such as the one here
to be invalid under § 183c(a). The Goody III served only
as a dive boat: it departed the port of Tavernier in the Florida
Keys, brought the divers to the location of the dive, and after
the dive returned them to Tavernier. It was not a "vessel
transporting passengers between ports of the United States or
between any such port and a foreign port." 46 U.S.C. app.
§ 183c(a).
The legislative history supports
the interpretation by these cases that the statute does not cover
the liability release signed by Patricia Shultz. Congress enacted
§ 183c(a) in 1936 to "put a stop to" practices
like "providing on the reverse side of steamship tickets
that in the event of damage or injury caused by the negligence
or fault of the owner or his servants, the liability of the owner
shall be limited." H.R.Rep. No. 74-2517, at 6-7 (1936);
S.Rep. No. 74-2061, at 6-7 (1936). That "practice"
that Congress intended to outlaw was much different than the
practice here-requiring a signed liability release to participate
in the recreational and inherently risky activity of scuba diving.
The other case upholding a release
under similar circumstances relied on a lack of admiralty jurisdiction.
Although state courts have jurisdiction over admiralty cases,
Borden v. Phillips, 752 So.2d 69, 72-73 (Fla.Dist.Ct.App.2000)
concluded that admiralty jurisdiction did not exist and upheld
a release under Florida law. In Borden, the diver surfaced
and waived his hand in distress, but the captain misinterpreted
the signal as an "o.k." signal and detached the emergency
"tag line"--a floating rope enabling divers to pull
themselves to the boat. See 752 So.2d at 71. The court
held that admiralty jurisdiction was lacking over the wrongful
death claim, because the activity at issue was scuba diving,
not boating:
[T]he decedent intentionally departed
the [dive boat] to dive. This activity, scuba diving, was not
dependent on his passage in the [dive boat]. Further, decedent
ceased being a passenger when he entered the water. That the
crew was allegedly negligent when it failed to respond to decedent's
signal did not involve the operation or maintenance of the [dive
boat], but was related solely to the activity of scuba diving.
752 So.2d at 72-73. Because the
court determined admiralty jurisdiction not to exist, it did
not reach the issue whether admiralty law invalidated the liability
release.
The district court in this case
held there was admiralty jurisdiction because "by transporting
individual scuba divers from shore to dive off of a vessel, the
Defendants were performing an activity traditionally performed
by vessels." We see no reason to disturb this decision.
We, of course, cannot assume without deciding a jurisdictional
issue to decide a case that would not otherwise be before the
court. See Steel Co. v. Citizens for a Better Env't, 523
U.S. 83, 93-102, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). The
question here, however, is not whether subject matter jurisdiction
is satisfied, for this case is within the diversity jurisdiction
of the federal court, but whether to apply federal admiralty
law or state law to a case within the court's jurisdiction.
We note, however, that the jurisdictional
issue is not free from doubt. In addition to Borden, the
Florida state court case, two federal district courts have held
there to be no admiralty jurisdiction in recreational scuba diving
cases. In In re Kanoa, Inc., 872 F.Supp. 740 (D.Haw.1994),
a scuba diver died when his lungs exploded from surfacing too
rapidly without breathing. Although the dive began from a dive
boat, the court held that admiralty jurisdiction did not exist,
reasoning that the "relevant activity" was scuba diving,
not boat transportation. 872 F.Supp. at 745-46. In Tancredi
v. Dive Makai Charters, 823 F.Supp. 778 (D.Haw.1993), a scuba
diver drowned during a dive from a dive boat. The court held
that admiralty jurisdiction was lacking over plaintiff's tort
claim, because the boat had "little, if any, impact on the
events that transpired during Tancredi's dive that led to his
death." Instead, the death was attributable to "negligent
dive planning and supervision and the actions of the dive master
in taking Tancredi to unsafe levels." 823 F.Supp. at 784.
But see McClenahan v. Paradise Cruises, Ltd., 888 F.Supp.
120, 121-23 (D.Haw.1995) (holding that admiralty jurisdiction
existed in recreational scuba-type diving case, and concluding
that Kanoa, Inc. and Tancredi were overruled at
least in part by Jerome B. Grubart, Inc. v. Great Lakes
Dredge & Dock Co., 513 U.S. 527, 534, 115 S.Ct. 1043,
130 L.Ed.2d 1024 (1995), a Supreme Court case not involving recreational
scuba diving).
Although admiralty jurisdiction
has been recognized in other recreational scuba diving cases,
many of those cases are distinguishable by the role played by
the boat in causing the injuries. Admiralty jurisdiction has
been held to exist where scuba divers were struck by boats. See
Neely v. Club Med Management Servs., Inc., 63 F.3d 166, 179-80
(3rd Cir.1995) (en banc); Courtney v. Pacific Adventures,
Inc., 5 F.Supp.2d 874, 877-78 (D.Haw.1998). Admiralty jurisdiction
also existed where the dive boat crew failed to render medical
assistance to a diver after reboarding the dive boat.
See Sinclair v. Soniform, Inc., 935 F.2d 599, 600-02 (3rd
Cir.1991).
As the court did in Cutchin,
1999 AMC at 1379-81, admiralty jurisdiction was held to exist
in a case involving recreational scuba diving, despite the absence
of direct involvement of a boat. See Kuntz v. Windjammer "Barefoot"
Cruises, Ltd., 573 F.Supp. 1277, 1280 (W.D.Pa.1983). Admiralty
jurisdiction also existed where the dive boat crew failed to
render medical assistance to a diver after reboarding the
dive boat. See Sinclair v. Soniform, Inc., 935 F.2d 599,
600-02 (3rd Cir.1991).
Based on admiralty jurisdiction
of the tort claim, plaintiff makes the additional argument on
appeal that the liability release is invalid under admiralty
common law. The district court did not address this argument,
in which plaintiff relies on our statement in Kornberg v.
Carnival Cruise Lines, Inc., 741 F.2d 1332, 1335 (11th Cir.1984),
that "[a] sea carrier's ability to disclaim its responsibilities
is not unlimited." The vessels in Kornberg and in
the other cases cited by plaintiff, however, were common carriers--e.g.,
ferries, ocean liners, or cruise ships. See Kornberg,
741 F.2d at 1333; Liverpool and Great W. Steam Co. v. Phenix
Ins. Co., 129 U.S. 397, 437, 9 S.Ct. 469, 32 L.Ed. 788 (1889);
The Arabic, 50 F.2d 96, 97-99 (2d Cir.1931); The Oregon,
133 F. 609, 610 (9th Cir.1904); Lawlor v. Incres Nassau Steamship
Line, Inc., 161 F.Supp. 764, 765 (D.Mass.1958); Beane
v. Royal Caribbean Cruise Lines, Inc., No. CIV. A. 91-565
(E.D.La. May 22, 1992). Plaintiff does not contend that the Dive
Center was a common carrier. The Dive Center's business was scuba
diving, not general transportation. No court, as far as we have
been informed, has ever relied upon federal common law to invalidate
a liability release for scuba diving, even where the scuba diving
involved the use of a dive boat. The federal common law's limitation
on common carrier liability releases does not extend to the liability
release signed by Patricia Shultz.
Since no principle of federal law
governs the validity of the liability release signed by Patricia
Shultz, state law applies, unless the application of state law
would "frustrate national interests in having uniformity
in admiralty law." Coastal Fuels Mktg., Inc. v. Florida
Express Shipping Co., 207 F.3d 1247, 1251 (11th Cir.2000).
Plaintiff does not argue that state law is precluded for that
reason. Therefore, the district court correctly applied Florida
law, under which there is no dispute that the liability release
signed by Patricia Shultz is valid and bars plaintiff's claim.
See, e.g., Theis v. J&J Racing Promotions, 571 So.2d
92, 93-94 (Fla.Dist.Ct.App.1990).
There was no error in granting summary
judgment based upon the release of liability signed by Patricia
Shultz.
AFFIRMED.
|