Filed: Jun. 29, 2015
Latest Update: Mar. 02, 2020
Summary: Case: 14-12176 Date Filed: 06/29/2015 Page: 1 of 7 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 14-12176 Non-Argument Calendar _ D.C. Docket No. 1:13-cv-20041-JAL BISCAYNE TOWING & SALVAGE, INC., Plaintiff - Appellant, versus M/Y BACKSTAGE, HULL ID XAX80051L506, its engines, boats, equipment, machinery, furnishings, apparel and appurtenances, etc., in rem, PRIVATE MARINE VENTURES, LLC, in personam, Defendants - Appellees. _ Appeal from the United States D
Summary: Case: 14-12176 Date Filed: 06/29/2015 Page: 1 of 7 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 14-12176 Non-Argument Calendar _ D.C. Docket No. 1:13-cv-20041-JAL BISCAYNE TOWING & SALVAGE, INC., Plaintiff - Appellant, versus M/Y BACKSTAGE, HULL ID XAX80051L506, its engines, boats, equipment, machinery, furnishings, apparel and appurtenances, etc., in rem, PRIVATE MARINE VENTURES, LLC, in personam, Defendants - Appellees. _ Appeal from the United States Di..
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Case: 14-12176 Date Filed: 06/29/2015 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-12176
Non-Argument Calendar
________________________
D.C. Docket No. 1:13-cv-20041-JAL
BISCAYNE TOWING & SALVAGE, INC.,
Plaintiff - Appellant,
versus
M/Y BACKSTAGE,
HULL ID XAX80051L506,
its engines, boats, equipment, machinery,
furnishings, apparel and appurtenances, etc., in rem,
PRIVATE MARINE VENTURES, LLC,
in personam,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 29, 2015)
Before JULIE CARNES, FAY and COX, Circuit Judges.
PER CURIAM:
Case: 14-12176 Date Filed: 06/29/2015 Page: 2 of 7
Biscayne Towing & Salvage, Inc. (“Biscayne Towing”) sued the M/Y
Backstage in rem (“Backstage”) and its owner, Private Marine Ventures, LLC, in
personam, for salvage of the Backstage. The district court, finding it undisputed
that the Backstage “was not in ‘maritime peril’” (Doc. 53:7) when Biscayne
Towing allegedly salvaged it, granted the Backstage and Private Marine Ventures
summary judgment (Doc. 53). We reverse and remand.
I. Facts
Viewing all the evidence and with all reasonable factual inferences drawn in
favor of Biscayne Towing, the non-movant, these are the facts. A yacht docked in
the first slip of Grove Harbor Marina’s Pier One caught fire. Fire department
personnel arrived at approximately 6:30 a.m. The igniting yacht and the one in the
next slip to the east along the pier were engulfed in flames. The third yacht to the
east was burning badly. The fourth yacht to the east, the M/Y Splendour, had fire
on its starboard side. The Backstage, the fifth yacht to the east and the yacht at
issue in this case, was not on fire but was getting hot on its starboard side.
Peter Hargreaves, the owner of Biscayne Towing, arrived on the scene with
a towboat at 6:40. An official of the City of Miami Fire Department said they
needed to create a firebreak by pulling the Splendour out of its slip. Hargreaves
agreed. He backed up his towboat and threw a line to a fireman on the bow, who
secured it. The towline secured, the starboard lines already burned through, and
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the port lines cast aside, Hargreaves began moving the Splendour out of its slip at
6:46—6:50 a.m.
The Backstage’s owner, Alan Zima, and its assistant pilot, Ernie Portuondo,
arrived at the Backstage’s stern just after 7:00 a.m. and announced their readiness
to move the Backstage. Firemen would not allow them to board the vessel.
Although the fire on the Splendour had been extinguished in the slip, the fire
rekindled as it was towed out of the marina. A Miami-Dade County Fire
Department fireboat eventually arrived to extinguish the fires on the three yachts
still burning. The Backstage never caught fire, but suffered extensive heat-related
damage on its starboard side.
II. Proceedings Below
Biscayne Towing filed against the Backstage and its owner a verified
complaint for salvage. Extensive discovery ensued, following which the
Backstage and its owner sought summary judgment, arguing that salvage was
unwarranted because Biscayne Towing rendered indirect benefit to a vessel not in
need of assistance.
The district court granted summary judgment on the basis that the Backstage
faced no maritime peril, an essential element of Biscayne Towing’s claim. See
generally Celotex Corp. v. Catrett, 477 U.S. 317, 322,
106 S. Ct. 2548, 2552
(1986) (“[T]he plain language of Rule 56(c) mandates the entry of summary
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judgment . . . against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.”) In particular, the district court reasoned that
where “the vessel has the situation under control such that there is no ‘reasonable
apprehension for her safety in the future if left to her own unaided efforts,’” there
is no peril. (Doc. 53:7) (citations omitted). The district court’s basis for
concluding that no maritime peril existed was that Alan Zima, the principal
member of the Backstage’s owner, Ernie Portuondo, its captain, and the dock
master, Tony Zamora, had arrived as the Splendour was pulling out. They told the
firemen that they could move the Backstage because her engines were operable.
The district court acknowledges that the firemen refused to let them board the
Backstage until the fire was under control and the Splendour was out of the marina.
III. Contentions of the Parties
The Backstage and Private Marine Ventures contend that no maritime peril
existed because the vessel neither requested nor needed assistance. Biscayne
Towing challenges the district court’s grant of summary judgment on the basis that
genuine issues of fact exist as to whether the Backstage was in maritime peril.
IV. Standard of Review
Summary judgment is proper when there are no genuine issues of material
fact and the moving party, on the basis of the undisputed facts, is entitled to
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judgment as a matter of law. FED. R. CIV. P. 56(a). We review de novo the trial
court’s grant or denial of a motion for summary judgment, viewing the record and
drawing all reasonable inferences in the light most favorable to the non-moving
party. Patton v. Triad Guaranty Ins. Corp., 277 F.3d 1294, 1296 (11th Cir. 2002).
V. Discussion
“Salvage is the reward or compensation allowed by the maritime law for
service rendered in saving maritime property, at risk or in distress, by those under
no legal obligation to render it, which results in benefit to the property, if
eventually saved.” The Neshaminy, 228 F. 285, 288-89 (3rd Cir. 1915). The
essential elements of a salvage claim are: “(1) A maritime peril from which the
ship or other property could not have been rescued without the salvor’s
assistance[;] (2) A voluntary act by the salvor—that is, he must be under no official
or legal duty to render the assistance[; and] (3) Success in saving, or in helping to
save at least part of the property at risk.” Klein v. Unidentified Wrecked, etc.,
Vessel,
758 F.2d 1511, 1515 (11th Cir. 1985) (citations omitted). A maritime peril
does not exist where “the vessel has the situation under control such that there is no
‘reasonable apprehension for her safety in the future if left to her own unaided
efforts.’” Fine v. Rockwood,
895 F. Supp. 306, 309 (S.D. Fla. 1995) (quoting The
J.C. Pfluger,
109 F. 93, 95-96 (N.D. Cal. 1901). “However, the danger need not be
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immediate or actual. All that is necessary is a reasonable apprehension of peril.”
Id. at 309 (citations omitted).
We need not resolve the purely legal question whether the existence of
maritime peril has a “needs-assistance” component as contended by the
Defendants. Rather, we conclude that the district court erred in granting summary
judgment because the district court resolved two genuine factual issues that were
disputed in order to arrive at the conclusion that no maritime peril existed.
First, the district court resolved in favor of the Defendants, despite evidence
to the contrary produced by Biscayne Towing, that the Backstage was in a position
to be moved before the Splendour blocked its way. Removing the Splendour was
to create a firebreak. There is evidence that the Splendour was moving out of its
slip when Lima and Portuondo arrived and said they were ready to move the
Backstage. There is evidence that the Splendour was blocking the Backstage’s
way by then, but no evidence that firemen told Biscayne Towing to stop.
Second, the district court glosses over the fact that the firemen would not
allow Lima and Portuondo to board the Backstage. There is evidence that the
firemen would not allow Lima and Portuondo on the Backstage until the firebreak
was created and the fires on the first three boats were put out by the late-arriving
fireboat.
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Summary judgment was improper because the district court resolved these
two genuine issues of material fact concerning the Backstage’s ability to move
itself out of harm’s way. There is a genuine issue of fact as to whether a maritime
peril existed.
VI. Conclusion
For these reasons, we hold that the district court erred in granting summary
judgment to the M/Y Backstage, in rem, and Private Ventures, LLC, in personam,
and against Biscayne Towing & Salvage, Inc. We vacate the grant of summary
judgment and remand the case to the district court for further proceedings.
REVERSED and REMANDED.
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