Dive flag requirements – MyFWC.com/Boating

Licenses and permit requirements – MyFWC.com/License

Spiny lobster rules and regulations – MyFWC.com/RULESANDREGS/Saltwater_Regulations_lobster.htm

Monroe County lobster fishing brochure – MyFWC.com/docs/RulesRegulations/Lobster_Brochure.pdf

Commercial lobster fishing -MyFWC.com/RULESANDREGS/SaltwaterRules_CommercialRegs.htm.

by John D. Hoffman Esq
http://floridaboataccidentinjurylawyer.com/
http://www.hoffmanpa.com/boat/
http://www.hoffmanpa.com

This article does not constitute legal advice or the formation of an attorney-client relationship, and is not for re-publication without express permission of the author.

Mr. Hoffman is a member of the Florida Bar, and litigates in other U.S. jurisdictions in conjunction with qualified local counsel. He can be reached at 305-372-2877 or john@hoffmanpa.com

For immediate release: July 22, 2009

Contact: Lee Schlesinger, 850-487-0554

Lobster seasons about to begin

Recreational and commercial harvest seasons for spiny lobster in Florida are set to reopen soon.  The special two-day spiny lobster sport season comes first, July 29-30 this year, followed by the regular lobster season Aug. 6 – March 31.

The special two-day sport season occurs on the last consecutive Wednesday and Thursday in July each year to let recreational fishermen collect spiny lobsters before commercial lobster traps are placed in the water.  Commercial fishermen may begin putting their traps in the water Aug. 1, and recreational and commercial fishermen may harvest spiny lobsters starting Aug. 6.

Spiny lobsters must have a carapace length greater than 3 inches to be taken during the open seasons, and divers must possess a measuring device and measure all lobsters in the water.

During the two-day spiny lobster sport season, divers and snorkelers are allowed to take up to 6 lobsters per person daily in Monroe County and Biscayne National Park waters and 12 lobsters per person daily in other Florida waters.  Lobster fishermen may possess no more than the daily bag limit of lobsters when on the water.

When lobster fishermen are off the water, they may possess the daily bag limit on the first day and double the daily bag limit on the second day.  Possession limits are enforced on and off the water during the two-day sport season.

Night diving for spiny lobsters during the two-day sport season is not allowed in Monroe County, and all harvest of lobsters is prohibited in John Pennekamp Coral Reef State Park during the two-day season.

Lobster harvest is also prohibited at all times in Everglades National Park, Dry Tortugas National Park, Biscayne Bay/Card Sound Spiny Lobster Sanctuary, certain areas in Pennekamp Park, and the no-take areas in the Florida Keys National Marine Sanctuary.

During the Aug. 6 – March 31 regular season, the daily recreational bag and on-the-water possession limit is 6 spiny lobsters per person.

Recreational harvesters must have a saltwater fishing license or – beginning Aug. 1 – a resident shoreline fishing license if they are wading from shore, and a spiny lobster permit to harvest spiny lobsters unless they are exempt from the recreational license requirements.

Divers and snorkelers are required to display a “divers-down” flag (red with a white diagonal stripe) while in the water. Divers-down flags displayed on vessels must be at least 20 inches by 24 inches, and a stiffener is required to keep the flag unfurled.  Dive flags carried on floats must be at least 12 inches by 12 inches.

The FWC’s Web site has more information as follows:

§         Dive flag requirements – MyFWC.com/Boating

§         Licenses and permit requirements – MyFWC.com/License

§         Spiny lobster rules and regulations – MyFWC.com/RULESANDREGS/Saltwater_Regulations_lobster.htm

§         Monroe County lobster fishing brochure – MyFWC.com/docs/RulesRegulations/Lobster_Brochure.pdf

§         Commercial lobster fishing -MyFWC.com/RULESANDREGS/SaltwaterRules_CommercialRegs.htm.

The Miami Herald reported that - Law enforcement officials are now searching for Karma, a 25-foot white boat believed to have struck the two and left the scene.

According to fire rescue, lifeguards with the department’s Beach Safety division spotted a boat making its way north about 200 yards from shore near Johnson Street around 11:50 a.m.-

The FWC link below also documents and other boating accident/diver accident that had tragic and catastrophic losses.  The article discusses a diver who tried to swim out of the boat’s path, but the diver and the boat collided. The diver lost both of his legs, below the knee.

 http://myfwc.com/NEWSROOM/09/statewide/News_09_X_DiveFlagWeek2.htm

http://www.miamiherald.com/news/miami-dade/story/1128786.html

by John D. Hoffman Esq
http://floridaboataccidentinjurylawyer.com/
http://www.hoffmanpa.com/boat/
http://www.hoffmanpa.com

This article does not constitute legal advice or the formation of an attorney-client relationship, and is not for re-publication without express permission of the author.

Mr. Hoffman is a member of the Florida Bar, and litigates in other U.S. jurisdictions in conjunction with qualified local counsel. He can be reached at 305-372-2877 or john@hoffmanpa.com

Click here for personal watercraft regulations as published by the Florida Wildlife commission:

Click here for a Miami Herald article from a representative of the personal watercraft industry Association:

by John D. Hoffman Esq
http://floridaboataccidentinjurylawyer.com/

This article does not constitute legal advice or the formation of an attorney-client relationship, and is not for re-publication without express permission of the author.

Mr. Hoffman is a member of the Florida Bar, and litigates in other U.S. jurisdictions in conjunction with qualified local counsel. He can be reached at 305-372-2877 or john@hoffmanpa.com

by John D. Hoffman Esq
http://www.hoffmanpa.com/boat/

This article does not constitute legal advice or the formation of an attorney-client relationship, and is not for re-publication without express permission of the author.

Mr. Hoffman is a member of the Florida Bar, and litigates in other U.S. jurisdictions in conjunction with qualified local counsel. He can be reached at 305-372-2877 or john@hoffmanpa.com

click on each picture to see the full size photo

See some of the shark harvesting regulations at:   http://www.ncfisheries.net/procs/procs2k9/FF-32-2009.html

See video of the boat & shark at: http://cbs4.com/video/?id=76714@wfor.dayport.com

See the news article at:  http://www.justnews.com/news/19507388/detail.html#

by John D. Hoffman Esq
http://www.floridaboataccidentinjurylawyer.com/

This article does not constitute legal advice or the formation of an attorney-client relationship, and is not for re-publication without express permission of the author.

Mr. Hoffman is dedicated to the practice of boating litigation. Mr. Hoffman is a member of the Florida Bar, and litigates in other U.S. jurisdictions in conjunction with qualified local counsel. He can be reached at 305-372-2877 or john@hoffmanpa.com

by John D. Hoffman Esq

This article does not constitute legal advice or the formation of an attorney-client relationship, and is not for re-publication without express permission of the author.

Mr. Hoffman is dedicated to the practice of boating litigation. Mr. Hoffman is a member of the Florida Bar, and litigates in other U.S. jurisdictions in conjunction with qualified local counsel. He can be reached at 305-372-2877 or john@hoffmanpa.com

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
January Term 2009
BRUCE BRIGGS as Personal representative of the Estate of NEILA
BRIGGS,
Appellant,
v.
JUPITER HILLS LIGHTHOUSE MARINA, JEFFREY BRIGGS and
HARRIS-KAYOT,
Appellees.
No. 4D07-1997
[ March 4, 2009 ]
TAYLOR, J.
In this action for personal injuries resulting from a boat accident,
plaintiff, Bruce Briggs, the personal representative of the estate of Neila
Briggs, appeals the trial court’s order granting summary judgment for
the defendants, Jupiter Hills Lighthouse Marina (“Jupiter Hills”), Jeffrey
Briggs, and Harris-Kayot. The trial court determined that the accident
occurred on navigable waters and that plaintiff’s tort claims are barred
by expiration of the three-year statute of limitations for maritime torts.
We affirm summary judgment as to all counts except the state statutory
cause of action against Jupiter Hills.
On March 4, 2001, Jeffrey Briggs rented a boat from Jupiter Hills
Lighthouse Marina after consuming alcohol. His mother and father,
Neila and Bruce Briggs, were passengers on the boat. Two to three hours
into their trip on the Loxahatchee River, Jeff hit the wake from a larger
boat. Neila flew from her seat up into the air and landed on the floor of
the boat. She broke her back and was placed in a body cast for about
eight months following the accident. On March 2, 2005, almost four
years after the accident, Neila Briggs filed a lawsuit seeking damages for
her personal injuries. She sued three parties: (1) the operator of the
vessel at the time of the accident, Jeff Briggs; (2) the company that
2
rented the vessel, Jupiter Hills Lighthouse Marina; a n d (3) the
manufacturer of the vessel, Harris-Kayot.1
Plaintiff amended her complaint and added allegations that Jupiter
Hills negligently entrusted the boat to Jeff Briggs, violated sections
327.50 and 327.54, Florida Statutes, and breached the rental agreement
between Jupiter Hills and Jeff Briggs. Plaintiff also added a breach of
contract claim against Jeff Briggs. The defendants’ initial motions for
summary judgment were denied. After discovery was completed, the
defendants re-filed motions for summary judgment. They asserted that
plaintiff’s claims were barred by the three-year statute of limitations for
torts under maritime law. In support of their positions, the parties
submitted the depositions and affidavits of key participants and various
experts. After considering the materials, memoranda, and argument of
counsel, the trial court granted summary judgment in favor of the
defendants. The court found that “the incident occurred in navigable
waters and that the parties were engaged in activity which bears a
substantial relationship to traditional maritime activity.” It determined
that the “three-year statute of limitations for maritime torts (46 U.S.C. §
763a) applies to the claims in this case,” and that, because the action
was not filed until almost four years after the incident, the plaintiff’s
action was time-barred.
The standard of review for the trial court’s granting of a summary
judgment motion is de novo. Major League Baseball v. Morsani, 790 So.
2d 1071, 1074 (Fla. 2001); Patten v. Winderman, 965 So. 2d 1222, 1224
(Fla. 4th DCA 2007). When an appellate court reviews a ruling on a
summary judgment motion, it “must examine the record a n d any
supporting affidavits in the light most favorable to the non-moving
party.” City of Lauderhill v. Rhames, 864 So. 2d 432, 434 n.1 (Fla. 4th
DCA 2003).
The party who moves for summary judgment “has the burden of
proving the absence of a genuine issue of material fact.” Patten, 965 So.
2d at 1224 (citing Holl v. Talcott, 191 So. 2d 40, 43 (Fla. 1966)).
Moreover, evidence that raises an issue of material fact, conflicts, permits
different reasonable inferences, or tends to prove issues should be
submitted to the jury. Id. In other words, “[a] motion for summary
judgment should not be granted if the record reflects the existence of
genuine issues of fact or the possibility of any issue, or if the record
raises even the slightest doubt that an issue might exist.” Walter T.
1 During the pendency of this appeal, Neila Briggs passed away from causes
unrelated to this lawsuit.
3
Embry, Inc. v. LaSalle Nat’l Bank, 792 So. 2d 567, 568 (Fla. 4th DCA
2001). After the movant has provided competent evidence to establish
his or her claim, the non-moving party must provide counter-evidence
which shows a genuine issue. Id.
Plaintiff’s first argument on appeal is that there were genuine issues
of material fact in dispute concerning the location of the accident. As
defendant Jeff Briggs acknowledges, he and Neila Briggs gave conflicting
testimony about where the accident actually occurred. However, in
ruling on the motion for summary judgment, the trial court expressly
stated that “[f]or purposes of the motions, the court assumed that the
incident occurred at the location identified by the plaintiff.” Moreover,
the record establishes that both locations identified by the parties are
located well within the navigable waters of the Loxahatchee River, which
provides vessels up to forty feet in length with access to the Intracoastal
Waterway and the Atlantic Ocean. Thus, no issue of material fact existed
regarding the accident site so as to preclude summary judgment.
Plaintiff next argues that there was a dispute among the experts
regarding the navigability of the accident site for purposes of admiralty
jurisdiction. The record, however, reveals that there were no conflicts in
the “facts” relating to the physical and navigability attributes of the
Loxahatchee, just a conflict in the ultimate legal conclusions reached by
the experts. Although the issue of navigability requires resolving some
factual questions based on the particular circumstances of each case,
the ultimate conclusion as to navigability is a question of law inseparable
from the particular facts to which they are applied. Loving v. Alexander,
745 F.2d 861, 865 (4th Cir. 1984); see also Brevard County v. Blasky,
875 So. 2d 6, 13 (Fla. 5th DCA 2004); Bd. of Trs. of Internal Imp. Trust
Fund v. Fla. Pub. Utils. Co., 599 So. 2d 1356, 1358 (Fla. 1st DCA 1992).
The trial court properly disregarded those portions of the expert
witnesses’ affidavits which were merely legal conclusions. A trial judge
may not rely on expert testimony “to determine the meaning of terms
which were questions of law to be decided by the trial court.” Devin v.
City of Hollywood, 351 So. 2d 1022, 1026 (Fla. 4th DCA 1976); see also
Palm Beach County v. Town of Palm Beach, 426 So. 2d 1063, 1070 (Fla.
4 t h DCA 1983) (expert witnesses are not supposed to draw legal
conclusions; this is the function of trial courts).
Among the factors relied upon by plaintiff’s expert to support his
claim of the Loxahatchee’s non-navigability were the presence of
sandbars and shallow areas in the vicinity of the accident and the
Tequesta Drive Bridge, a fixed bridge. These factors, however, do not
negate the status of the Loxahatchee River as a navigable waterway.
4
Plaintiff failed to produce any evidence that the bridge created an
obstruction to interstate commerce and travel. Moreover, the undisputed
evidence shows that the subject vessel was able to travel under the
bridge and that there were other vessels traveling in the area as well.
The sandbar areas were marked by navigational aids and were not a
contributing cause of the accident. See, e.g. United States v. Utah, 283
U.S. 64 (1931) (holding that the mere presence of sandbars impeding
navigation does not make a river unnavigable). The accident was caused
when the subject vessel hit the wake of a passing vessel, which was
thirty to thirty-eight feet in length.
Plaintiff argues that his personal injury suit does not involve a
maritime tort subject to the three-year-statute of limitations. Under
maritime or admiralty law, a civil action for damages for personal injury
or death arising out of a maritime tort must be brought within three
years after the cause of action arose. 46 U.S.C. App. 763a (2001).2 A
personal injury tort claim is governed by maritime law when it (1) arises
o n navigable waters (the locus test) a n d (2) bears a substantial
relationship to a traditional maritime activity (the nexus test). Executive
Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 268 (1972); Foremost
Ins. Co. v. Richardson, 457 U.S. 668, 676 (1982).3 Here, it is clear that
the operation of the vessel involved in the subject accident bears a
significant relationship to a traditional maritime activity. Thus, the
controlling issue to be decided is whether the alleged tort occurred on
“navigable waters.”
In The Daniel Ball, 77 U.S. (10 Wall.) 557, 19 L.Ed. 999 (1870),
superseded by statute, Federal Water Pollution Control Act Amendments
2 This statute has been renumbered as 46 U.S.C.A. § 30106 (2006).
3 The Supreme Court has explained that the nexus test does not require that
the maritime activity be an exclusively commercial activity; the negligent
operation of a boat on navigable waters is enough. Foremost, 457 U.S. at 674.
In fact, the Supreme Court has held,
The potential disruptive impact of a collision between boats on
navigable waters, when coupled with the traditional concern that
admiralty law holds for navigation, compels the conclusion that
this collision between two pleasure boats on navigable waters has
a significant relationship with maritime commerce.
Id. at 675; see also Wilson v. Suzuki of Orange Park, Inc., 2005 WL 3372839
(M.D. Fla. 2005) (holding that admiralty jurisdiction applied to the case of a
malfunctioning Sea Doo).
5
of 1972, § 404(G)(1), 33 U.S.C.A. § 1444(g)(1), as recognized in Rapanos
v. United States, 547 U.S. 715 (2006), the Supreme Court enunciated the
test for determining whether a specific body of water constitutes
navigable waters for purposes of federal admiralty jurisdiction:
Those rivers must be regarded as public navigable rivers in
law which are navigable in fact. And they are navigable in
fact when they are used, or are susceptible of being used, in
their ordinary condition, as highways for commerce, over
which trade and travel are or may b e conducted in the
customary modes of trade and travel on water. And they
constitute navigable waters of the United States within the
meaning of the acts of Congress, in contradistinction from
the navigable waters of the States, when they form in their
ordinary condition by themselves, or by uniting with other
waters, a continued highway over which commerce is or may
be carried on with other States or foreign countries in the
customary modes in which such commerce is conducted by
water.
Id. at 563. Although The Daniel Ball was essentially a Commerce Clause
case, it h a s been applied by many courts in deciding admiralty
jurisdiction and is considered to be the groundbreaking decision in this
area of law. LeBlanc v. Cleveland, 198 F.3d 353, 356 (2d Cir. 1999).
The test of navigability is whether a waterway “is presently used, or is
presently capable of being used, as an interstate highway for commercial
trade or travel in the customary modes of travel on water.” LeBlanc, 198
F.3d at 359. In this case, n o evidence was presented regarding
commercial maritime activity o n th e Loxahatchee River where the
accident occurred. However, “the test for navigability is based on a
broader and more stable factor than whether the body of water is
currently being used for commercial navigation. It must also include a
consideration of whether the body of water is capable of bearing
commercial navigation.” Price v. Price, 929 F.2d 131, 134 (4th Cir. 1991);
Mullenix v. United States, 984 F.2d 101, 104 (4th Cir. 1993) (a purely
recreational waterway can be deemed navigable for purposes of federal
admiralty jurisdiction). We can find no support for plaintiff’s position
that a waterway is navigable for purposes of admiralty jurisdiction only if
the waterway can support “ocean going commercial vessels.”
Unlike the cases cited by plaintiff, which involved waterways with
dams, waterfalls, or other impediments that made it physically
6
impossible for commercial shipping to ever take place,4 no evidence was
presented in this case that there are any natural or artificial obstructions
on the Loxahatchee which would effectively prohibit future commerce.
See LeBlanc, 198 F.3d at 359 (stating that if “natural and artificial
obstructions” effectively prohibit commerce, admiralty jurisdiction cannot
lie). In fact, Bruce, Neila, and Jeff Briggs all stated in their depositions
that relatively large boats were on the Loxahatchee on the day of the
accident and that a boat approximately thirty feet long created the wake
which caused the accident. The undisputed evidence established that
the Loxahatchee River flows and/or unites with the Intracoastal
Waterway and the Atlantic Ocean, thus permitting vessel traffic between
the accident site and the Atlantic Ocean, which can continue on to
foreign states and countries.
In sum, there are no disputed facts regarding the navigability issue
and the trial court properly determined that the area of the Loxahatchee
where the accident occurred was a navigable waterway for maritime
purposes. Thus the trial court properly applied the three-year statute of
limitations for admiralty jurisdiction in granting summary judgment for
the defendants.
We find no merit to plaintiff’s argument that the maritime three-year
statute of limitations does not apply to the negligent entrustment and
breach of contract causes of action. We do agree with plaintiff, however,
that his state statutory cause of action against Jupiter Hills should not
have been barred by the three-year statute of limitations. In Count One
of the amended complaint, plaintiff alleged that Jupiter Hills violated
section 327.54, Florida Statutes (2001). Section 327.54(1) states that a
“livery may not knowingly lease, hire, or rent a vessel to any person”
under certain conditions. A cause of action under section 327.54 is
considered independent from a negligence cause of action. See Meyers v.
Scoot-a-Way Corp., 662 So. 2d 411 (Fla. 3d DCA 1995); see also Ruano v.
Water Sports of Am., Inc., 578 So. 2d 385, 386 (Fla. 3d DCA 1991)
(holding that the statute “supplants the common law theories of
vicarious liability and negligent entrustment”). The plaintiff’s cause of
action under the statute does not fall within the ambit of admiralty
jurisdiction because the statute clearly provides for a state-created cause
of action that is independent from other common law torts. Accordingly,
4 Lockheed Martin Corp. v. Morganti, 412 F.3d 407 (2d Cir. 2005); Livingston v.
United States, 627 F.2d 165 (8th Cir. 1980); Chapman v. United States, 575
F.2d 147 (7th Cir. 1978); Adams v. Mont. Power Co., 528 F.2d 437 (9th Cir.
1975); Dunham v. DeMaine, 559 F. Supp. 224 (E.D. Ark. 1983); Smith v. Hustler,
Inc., 514 F. Supp. 1265 (W.D. La. 1981).
7
we affirm final summary judgment on all counts for the defendants,
except the state statutory cause of action against Jupiter Hills.
Affirmed in part; Reversed in part.
HAZOURI and MAY, JJ., concur.
* * *
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; J o h n J. Hoy, Judge; L.T. Case No.
502005CA001951XXXXMB.