Soto v. McCulley Marine Serv., Inc., Case No. 09 CA 12990, (Fla. 12th Cir. Ct.)
This case arose when a jet-ski, with a history of engine problems, lost power up-current of a moored tug and barge unit that was legally and permissibly tied to a dock in broad daylight on 4th of July weekend. The jet-ski, and its two riders, drifted downstream until they made contact with the docked tugboat. The riders grabbed hold of the tug’s tire fenders. The jet-ski then flipped upside down, but rather than let the jet-ski go, the two men strained to hold both to the tug and the jet ski.
One of the riders, Jovanni Ortiz, after four to five minutes of hanging on, let go of the jet-ski. Ortiz was picked up soon after by a bystander. The other rider, Jose Medina stayed with the jet-ski, even though there were other vessels around and he was only a few feet from shore. Another jet-ski, operated by two friends of Medina’s, came to recover the overturned jet-ski. After several failed attempts, the overturned jet-ski was successfully towed to the beach. No one noticed, however, that Medina had disappeared. He was later found by divers underneath the barge, drowned.
Medina’s widow, as personal representative of the estate of Jose Medina, filed suit1 and claimed the Defendants were negligent in that they 1) caused an obstruction to navigation by mooring the tug and barge at the dock; 2) failed to warn the decedent; 3) failed to keep a lookout on the moored tug and barge; and 4) unreasonably allowed barnacles on the barge’s hull. The Plaintiff sued the tug owners, barge charterer, the tug captain and mate, and Manatee County, Florida (land owner where tug and barge were moored). With the exception of Manatee County, all defendants were represented by HM&B.
While Manatee County was granted summary judgment on the claims against it and the crew members were dismissed as parties, the other remaining entities proceeded to trial. Prior to trial, the remaining Defendants also filed a Motion for Summary Judgment on a number of points, and the Judge granted a favorable, partial summary judgment on two issues – Defendants could not be held liable for violating the U.S. Army Corps of Engineers permit2 or for violating 33 U.S.C. § 409.3 During trial, the main issues revolved around the Plaintiff’s claim Defendants violated a Code of Federal Regulation section4 dealing with vessels being anchored or moored in “narrow parts of the waterway,” without first seeking the appropriate permission from authorities. Defendants, on the other hand, successfully argued the Regulation did not apply in this case based upon the vessel’s exact mooring location, especially as it related to the surrounding area of navigable water. Following conclusion of a three day trial on a Friday afternoon, the jury was given the case for deliberation on Monday morning. After approximately two hours of deliberation, the jury returned a complete defense verdict awarding the Plaintiff nothing.
The Plaintiff has appealed both the Manatee County summary judgment dismissal and the complete defense verdict resulting from trial. Both of these matters are presently pending before Florida’s Second District Court of Appeal.