Florida/Georgia Personal Injury & Workers Compensation

...e marina for damages which were allegedly caused by their failure to move the vessels from the marina before Hurricane Opal moved ashore at Santa Rosa Sound in October 1995. It now challenges a trial court order dismissing its complaint as barred by section 327.59, Florida Statutes (1995)....

...cane was developing in the Gulf of Mexico and that Gulf Breeze, Florida was well within the reasonable range of probable landfall sites for that hurricane." The boat owners filed motions to dismiss, asserting, inter alia, that the suit was barred by section 327.59, which provides: (1) After June 1, 1994, marinas may not adopt, maintain, or enforce policies pertaining to evacuation of vessels which require vessels to be removed from marinas following the issuance of a hurricane watch or warning,...

...rina owner from dictating the kind of cleats, ropes, fenders, and other measures that must be used on vessels as a condition of use of the marina. Appellant challenges the trial court's order dismissing its complaint with prejudice, which found that section 327.59 "bars plaintiff's actions as plead for breach of contract and negligence against all defendants" and that the "allegations of joint and several liability of all defendants for breach of contract are not supported by the terms of the co...

...at plaintiff's counsel "expressed at the hearing that the Court's decision to grant a dismissal should be with prejudice because plaintiff was not able to amend its pleading to include allegations other than what was originally pleaded." By enacting section 327.59, the Florida Legislature has expressly stated its public policy "to ensure that protecting lives and safety of vessel owners is placed before interests of protecting property" when a hurricane approaches by defining the standard of car...

...[1] Sua sponte, we ordered the parties to file supplemental briefs addressing the following issues: 1. Whether this action is within the admiralty jurisdiction of Article III, Sec. 2, cl. 3 of the United States Constitution? 2. Whether federal maritime law applies to the decision in this case? *35 3. Whether application of section 327.59, Florida Statutes (1995), is preempted by federal maritime law? 4. Whether, prior to enactment of section 327.59, the owner of a boat which was lawfully docked at a marina under a valid slip lease agreement that did not require removal of the boat in the event of a hurricane threat owed a duty to the marina owner to remove his boat upon the reque...

...Restatement (Second) of Torts §§ 285-86 (1965). Having considered the briefs submitted by the parties and the results of our own research, we find that the instant action is within the admiralty jurisdiction and that federal maritime law applies. We further find that section 327.59 is not preempted by federal maritime law, because the issue addressed by the statute, protection of the lives and safety of persons during the threat of a hurricane, is a matter of paramount local concern to the citizens of Florida and...

...The complaint in the instant action did not specify whether a hurricane watch or warning had been issued when the marina owner requested the boat owners to move *36 their vessels from the marina. It is therefore necessary for us to determine whether, regardless of section 327.59, the owner of a boat which is lawfully docked at a marina, under a valid slip lease agreement that does not require removal of the boat in the event of a hurricane threat, owes a duty to the marina owner to remove his boat upon the req...

...[2] We can identify no logical reason to impose such a duty, in light of the insufficient probability, actual or apparent, at any time prior to issuance of an *37 official hurricane watch or warning, of a hurricane causing the boat owner's vessel to damage the marina. [3] We further construe section 327.59 as articulating a long-held public policy of the State of Florida "to ensure that protecting lives and safety of vessel owners is placed before interests of protecting property," which would preclude imposition of such a duty. [4] The trial court properly construed section 327.59 as barring the marina owner's action for property damage based solely upon the failure of the defendant boat owners to move their vessels from the marina after issuance of a hurricane watch or warning....

...[4] We leave for another time, because it was not presented in this case, the question of whether so-called "hurricane clauses" in slip lease agreements (requiring the boat owner to remove the vessel from the marina upon threat of hurricane) would be void as against this public policy, even in the absence of section 327.59....

...The Port Covington, 3 Cir., 1953, 205 F.2d 694, 696; The Victor, 153 F.2d 200, 202, 203 (5th Cir.1946). The presumption suffices to make a prima facie case of negligence against the moving vessel. The Victor, supra at 202. The Court first addresses Defendants' assertion that Florida Statute § 327.59 changes this long-standing presumption. Section 327.59 provides, in pertinent part, that: After June 1, 1994, marinas may not adopt, maintain, or enforce policies pertaining to evacuation of vessels which require vessels to be removed from marinas following the issuance of a hurricane watc...

...arning, in order to ensure that protecting the lives and safety of vessel owners is placed before interests of protecting property. *1070 Phipps relies upon Burklow & Associates, Inc. v. Belcher, 719 So.2d 31 (Fla. 4th D.C.A.1998) and suggests, that Section 327.59, contrary to the long-standing Louisiana Rule, removes the presumption of negligence against a moving vessel in situations where a moving vessel allides with a stationary marina, if the alleged negligence is premised on a failure of th...

...or if the policy underlying the admiralty rule is not strong and the effect on admiralty is minimal, the state law may be given effect. . . . Brockington v. Certified Electric, Inc., 903 F.2d 1523, 1530 (11th Cir.1990)(quoting Steelmet, id. ). The Burklow court determined that Section 327.59 was not preempted by federal maritime law, because "the issue addressed by the statute, protection of the lives and safety of persons during the threat of a hurricane, is a matter of paramount local concern to the citizens of Florida a...

...nst an unreasonable risk of harm," that the defendant *1071 breached such duty, and that the breach harmed plaintiff in a manner that the duty of reasonable care seeks to prevent. Relying on this statement of maritime negligence, the court held that Section 327.59 removed any duty on the part of a ship owner to move its boat in response to a marina owner's request after the issuance of a hurricane warning, and that accordingly, a negligence claim premised solely on the breach of the duty to remove a boat, must fail as there could be no duty to breach....