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

Florida Court of Appeals, Third District

June 6, 2018

Laurie Kipp, etc., Appellant,
v.
Amy Slate's Amoray Dive Center, Inc., et al., Appellees.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Monroe County, Lower Tribunal No. 16-323-P, Luis M. Garcia, Judge.

          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 (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.").

         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 ...


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