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Blue Water Enterprises, Inc. v. Town of Palm Beach

United States District Court, S.D. Florida

March 22, 2018

BLUE WATER ENTERPRISES, INC., Plaintiff,
v.
TOWN OF PALM BEACH, FLORIDA, and the TOWN OF PALM BEACH POLICE DEPARTMENT, Defendants.

          OPINION AND ORDER

          KENNETH A. MARRA United States District Judge

         This cause is before the Court upon Defendants Town of Palm Beach and Town of Palm Beach Police Department's Motion for Summary Judgment [DE 32]. The Court has reviewed all papers submitted in connection with the motion, the entire file, and is otherwise duly advised in the premises. The motion is ripe for the Court's consideration.

         I. Summary Judgment Standard

         The Court may grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The stringent burden of establishing the absence of a genuine issue of material fact lies with the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

         The movant “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323. After the movant has met its burden under Rule 56(a), the burden of production shifts and the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electronic Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record . . . or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(A) and (B).

         II. Background Facts

         The facts, as culled from the evidence submitted in admissible form by the Parties in connection with the motion, and reasonably inferred therefrom in the light most favorable to Plaintiff for the purpose of this motion, are set forth below. The Court notes that Plaintiff has not fully complied with Rule 56.1 of the Local Rules of Civil Procedure. To the extent Plaintiff did not controvert Defendants' facts with evidence supported in the record, Defendants' facts are deemed admitted where they have record support.

         Plaintiff Blue Water Enterprises, Inc. (“Blue Water”) is a Delaware Corporation which owns the M/Y Time Out, the vessel at issue in this case. [DE 33-2]. Thomas Henry Baker (“Baker”) is the President of Blue Water and the Master, or Captain, of the vessel. [DE 33-3 at 3, lines 18-24]. Karol Poulos (“Poulos”) was the Secretary/Treasurer of Blue Water. [Id. at 4, lines 20-24]. Both Baker and Poulos had authority, as company officers, to act on behalf of Blue Water. [Id. at 6, lines 7-14].

         In the early morning of September 7, 2016, Baker was navigating the M/Y Time Out from the Bahamas to Palm Beach County, Florida. [Id. at 8, lines11-23]. The M/Y Time Out engine failed, and Baker sent out a “may day” call to the United States Coast Guard. [DE 33-4 at 4, lines 1-3]. Baker then lost control of the vessel, which ended up on a sand bar. [DE 33-3 at 10, lines 15-19]. This was around 2:30 a.m. [DE 33-11 at 6, lines 19-24].

         The first person to arrive on the scene was Rob Remick, a duty captain for towing company SeaTow Palm Beach. [DE 33-4 at 5, line 24]. Mr. Remick testified that he heard the May Day call saying that the operator of the vessel had missed the inlet. [DE 33-4 at 3-4]. Mr. Remick went out to the inlet in a boat to look for the vessel. [Id. at 4]. He arrived between 8-10 minutes after he heard the may day call. [Id. at 5, lines 21-22].

         After arriving and assessing the situation, Mr. Remick could not get his boat closer than 100 yards away. He determined that it was not safe for him to anchor his boat and swim to the vessel. [Id. at 6, lines 15-23]. Mr. Remick called another captain, Will Beck, who headed out to meet him. [Id. at 6-7].

         Tow Boat U.S. arrived on the scene about five minutes after Mr. Remick arrived. [Id. at 7]. Chris Shaffner is the owner of Tow Boat U.S. Palm Beach, which assists in the towing and recovery of vessels that are damaged, disabled or sunk. Mr. Shaffner compared his company to Triple A for road service. His company has U.S. Coast Guard credentials with a towing endorsement. The company has been so licensed for over 20 years. [DE 33-5 at 3].

         Mr. Shaffner swam to the vessel. [Id. at 6, lines 16-20]. Upon boarding, he ascertained that the vessel was listing to port, on the beach, and water was in all of the lower cabins. [Id. at 7]. He assisted Baker and Poulos onto the shore. [Id. at 11]. At their request, he went back on board to recover some of their personal items. He found Mr. Baker's wallet and a cell phone, and gave them these items. [Id. at 15].

         The police arrived about10 minutes after Tow Boat U.S. arrived. [DE 33-4 at 7, lines 17-19]. Mr. Baker and Ms. Poulos were on the beach when the police arrived. [DE 33-5 at 15, lines 23-25]. After conducting a roadside sobriety test on Mr. Baker, he was taken into custody by the police for boating under the influence at 4:26 a.m. [[DE 33-6 at 4].

         Mr. Shaffner testified that prior to Mr. Baker being taken into police custody, he tried to arrange with Mr. Baker to begin a salvage or removal.

A. For us to conduct and begin a salvage or wreck removal, as the case may be, I need documents signed, I need money, you know, confirmed, and I couldn't get any of that done with him in the back of the police car. I had asked him for all that stuff when we were on the beach, and he asked me how much it was going to cost, and said that he had a friend ...

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