final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Monroe County, Lower
Tribunal No. 16-323-P, Luis M. Garcia, Judge.
& Associates, P.A., and Keith S. Brais and Richard D.
Rusak; Keller & Bolz, LLP, and John W. Keller, III, and
Sheyla Mesa, for appellant.
Chartwell Law Offices, LLP, and Krista Fowler Acuña
and Marcus G. Mahfood, for appellees.
EMAS, LOGUE, and LINDSEY, JJ.
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.
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
complaint contained six counts: (1) Jones Act negligence
against the dive center; (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.
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. 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.
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).
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). And the shoreward edge of the Gulf Stream
often runs seven or more nautical miles from the
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 (1960),
supplemented sub nom. United States v. Louisiana,
382 U.S. 288 (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.").
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. 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).
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