Reichen Kuhl v. Seven LXXVII, LLC, et al.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13862
Non-Argument Calendar
____________________
REICHEN KUHL,
as owner of the 2002 28-foot Four Winns
280 Horizon motorboat, HIN
GFNCE005F102,
Petitioner-Counter Defendant-Appellee,
versus
UNKNOWN CLAIMANT(S), et al.,
Defendants-Claimants,
SEVEN LXXVII, LLC,
Claimant-Counter Claimant-Third Party Plaintiff-Appellant,
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2 Opinion of the Court 22-13862
SUNTEX MARINA INVESTORS, LLC,
Claimant-Third Party Defendant-Cross Defendant-Appellee,
RAHN MARINA LLC, BAHIA MAR SMI OPCO SERIES,
Third Party Defendant-Cross Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:21-cv-60408-BB
____________________
Before W ILSON, G RANT, and L UCK , Circuit Judges.
PER CURIAM:
After trial, the facts of this maritime negligence and
Limitation Act case are well known to the parties. We have a duty
to separate out the arguments that Seven LXXVII, LLC made at
trial and in its motion for reconsideration. We disregard the latter
and only consider the former. Because our precedent establishes
the relevant standard of care, we review only for clear error. There
was no such error, and we affirm the lower court’s verdicts on
negligence and gross negligence. And while we review two other
issues—the meaning of a Coast Guard regulation, and the
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22-13862 Opinion of the Court 3
applicability of res ipsa loquitor—de novo, neither changes our
analysis.
I.
After taking on gasoline at a marina owned by Suntex
Marina Investors, LLC, an explosion rocked Reichen Kuhl’s 2002
powerboat about ten seconds after he started the engine—on the
very morning he first put it into the water after buying it used. He
and his passengers all exited safely, but the fiery vessel burned
through its moorings and collided with the next ship in line at the
fueling dock: the yacht “W.” Kuhl petitioned the Southern District
of Florida for limitation of (or exoneration from) liability, at which
point Seven LXXVII, LLC (“Seven”)—the owner of the W—filed
claims against both Kuhl and Suntex.
Several claims and crossclaims were disposed of through
settlement and the district court’s pretrial orders, and are not
appealed. Three claims went to a bench trial in the Southern
District of Florida: 1) Kuhl’s Limitation Act petition for
exoneration from or limitation of liability, 2) a simple negligence
claim against Kuhl by Seven, and 3) a gross negligence claim by
Seven against Suntex.
Most relevant for this appeal is Seven’s argument that Kuhl
ran the exhaust blowers in his engine compartment for only two-
and-a-half minutes, which was an unreasonably short amount of
time. As for gross negligence, Seven argued that Suntex should
have followed through on policies contained in its safe fueling and
staff training manual to make Kuhl run his blowers for longer,
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4 Opinion of the Court 22-13862
among other acts. But the district court disagreed. It limited Kuhl’s
liability to the value of the vessel ($0), and ruled against Seven
regarding Kuhl’s negligence and Suntex’s gross negligence.
The district court weighed the parties’ evidence on both
sides before concluding that the blowers were run for an adequate
amount of time. Seven focused on a Coast Guard regulation
requiring that a placard be installed on every vessel with a gasoline
engine and exhaust blowers—regardless of vessel size, age, or
blower type and output—stating: “WARNING—GASOLINE
VAPORS CAN EXPLODE. BEFORE STARTING ENGINE
OPERATE BLOWER FOR 4 MINUTES AND CHECK ENGINE
COMPARTMENT BILGE FOR GASOLINE VAPORS.” 33 C.F.R.
§ 183.610(f )(3). In its proposed findings of fact, Seven described the
contents of this placard as one of several “recommendations” on
how long to operate a blower. Suntex’s manual recommended that
blowers be run for between three and five minutes—though its
employees testified that in practice, they have conducted hundreds
of successful refuelings without rigidly adhering to this guidance.
The district court was most persuaded by testimony from Kuhl’s
fire safety expert that the new and powerful blowers installed on
his vessel would have completely cleared the air in the engine
compartment within one minute, so running them for any longer
would have made no difference in this case.
Additionally, the district court noted that Seven offered
insufficient evidence at trial about the cause of the explosion to
satisfy the causation prong of negligence. As for gross negligence,
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22-13862 Opinion of the Court 5
Seven had likewise failed to identify facts about Suntex’s
involvement that “alone or collectively contributed to the
explosion and fire.” All of the parties’ experts could not agree on
a cause of the explosion, Kuhl’s boat was a total loss, and Seven
itself had presented alternate theories about causation that it no
longer argues. For example, it argued below that Kuhl’s boat was
unseaworthy, but has not renewed these assertions on appeal,
instead suggesting that Kuhl’s vessel was working properly.
Because the cause of the accident was uncertain—and because
Seven had not met its burden to show how the actions of Kuhl or
Suntex contributed to it—the district court held that Kuhl was not
negligent and that Suntex was not grossly negligent. It also rejected
Seven’s res ipsa loquitor argument that the mere fact an explosion
occurred meant Kuhl was negligent.
Seven moved for reconsideration under Federal Rule of Civil
Procedure 59(e) and advanced several arguments for the first time,
including two that it reiterates on appeal: 1) that the notice and
comment history of the Coast Guard regulation from the 1970s
includes the word “requirement” when discussing running the
blowers for four minutes, and 2) that per se negligence was an
alternate basis for ruling against Kuhl. The district court denied
the motion for reconsideration. Seven appeals this denial, and the
three adverse rulings at trial.
II.
“We review a district court’s factual findings when sitting
without a jury in admiralty under the clearly erroneous standard.”
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6 Opinion of the Court 22-13862
Venus Lines Agency, Inc. v. CVG Int’l Am., Inc., 234 F.3d 1225, 1228
(11th Cir. 2000). A district court’s conclusions of law are reviewed
de novo. Id. In negligence suits, we have long held that questions
“as to contributory negligence and as to proximate cause” are fact
questions, as are determinations about whether a party has
breached a duty owed to another. Safe Harbor Enters., Inc. v. Hill,
301 F.2d 139, 139 (5th Cir. 1962); Chavez v. Noble Drilling Corp., 567
F.2d 287, 289 (5th Cir. 1978).1
III.
Both the district court’s decision on limitation and Seven’s
claims against Kuhl stand or fall with its determination that he was
not negligent. See Hercules Carriers, Inc. v. Claimant State of Florida,
Dep’t of Transp., 768 F.2d 1558, 1563–64 (11th Cir. 1985) (claimant
bears the burden of proving shipowner’s negligence for Limitation
Act purposes). But before addressing the merits of Seven’s
arguments about negligence, we explain two types of arguments
that we will not consider.
First, while Seven’s briefs do not distinguish between
arguments made at trial and those raised for the first time in its
reconsideration motion, it is vital that we do. It is too late to
introduce new legal arguments in a reconsideration motion if they
could have been raised earlier. See, e.g., Arthur v. King, 500 F.3d
1 See Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc)
(adopting as binding precedent all decisions of the former Fifth Circuit handed
down prior to the close of business on September 30, 1981).
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22-13862 Opinion of the Court 7
1335, 1343 (11th Cir. 2007); Michael Linet, Inc. v. Vill. of Wellington,
408 F.3d 757, 763 (11th Cir. 2005). Seven first argued that
negligence per se (the so-called “Pennsylvania Rule”) should apply
on reconsideration. And Seven’s motion also recharacterized the
Coast Guard regulation as a substantive requirement (based on its
notice and comment history) that Kuhl run his blowers for at least
four minutes rather than a recommendation. Seven could have
made both of these arguments at trial and chose not to, so we
disregard them. And because Seven advances no arguments that
the district court erred in denying its reconsideration motion, those
claims are abandoned. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d
678, 681–82 (11th Cir. 2014).
Second, most of Seven’s brief asks us to diminish the weight
that the district court placed on testimony from Kuhl’s fire-safety
expert. But disputing how much to weigh evidence is a “garden-
variety abuse of discretion argument.” Fynn v. U.S. Att’y Gen., 752
F.3d 1250, 1252 (11th Cir. 2014) (quotation omitted). The district
court’s decision to weigh one piece of evidence above others is not
clear error. Anderson v. City of Bessemer City, 470 U.S. 564, 573–74
(1985).
That leaves only a few arguments for us to review—and
none can defeat the district court’s ultimate determinations that
Kuhl was not negligent and that Suntex was not grossly negligent.
First, Seven argues that we review the relevant standard of
care in a negligence case de novo, and that we should apply a
heightened standard to Kuhl. Seven is correct that our review of
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8 Opinion of the Court 22-13862
the appropriate standard of care for a shipowner’s conduct is not
bound by clear error review. Keefe v. Bahama Cruise Line, Inc., 867
F.2d 1318, 1321 (11th Cir. 1989). But it is clear from our precedent
that the proper standard is “ordinary reasonable care under the
circumstances.” Id. at 1322; see also Fischer v. S/Y NERAIDA, 508
F.3d 586, 594–95 (11th Cir. 2007). There is no indication that the
district court deviated from this standard when weighing the
evidence to determine what behavior could have amounted to a
breach of a duty given the circumstances here.2
Second, because we review a court’s interpretation of
regulations de novo, Seven asks that we revisit the district court’s
reading of the Coast Guard regulation. See Freixa v. Prestige Cruise
Servs., LLC, 853 F.3d 1344, 1346 (11th Cir. 2017). But we agree with
the district court—and Seven’s proposed findings of fact—that the
regulation requires owners to install the placard. Nothing in the
text mandates that operators actually follow the contents of the
placard in every instance that they start the engine. And the same
warning must be affixed regardless of the air flow capacity of the
blowers. See 33 C.F.R. § 183.610(b), (f).
2 Seven also argues that, under Florida law, negligence is a question of law
subject to de novo review when there are no disputed facts and the evidence
“ultimately leads to but one conclusion.” See Cooper Hotel Servs., Inc. v.
MacFarland, 662 So. 2d 710, 712 (Fla. Dist. Ct. App. 1995). We think the
uncertainty surrounding the cause of the accident here is enough to suggest
that a genuine dispute of material fact exists.
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22-13862 Opinion of the Court 9
Of course, the contents of the placard are evidence that a
court should consider when assessing the factual question of how
long a reasonable operator in Kuhl’s position would have run his
blowers. But the district court did that here. Rather than this
general regulation, it was more persuaded by evidence about the
specific blowers installed on Kuhl’s vessel (which could clear the air
in about a minute according to expert testimony) when assessing
whether Kuhl acted reasonably in the circumstances. Though we
can review what the regulation means, we cannot review the
weight that the district court placed on it except for clear error.
There was no such error here.
The district court also correctly refused to apply the doctrine
of res ipsa loquitor. Even if we applied this doctrine, here it only
aids “a plaintiff in proving a breach of duty.” Tesoriero v. Carnival
Corp., 965 F.3d 1170, 1182 (11th Cir. 2020) (quotation omitted). It
cannot establish that “a breach of that duty was a substantial factor
in causing plaintiff harm.” Id. (quotation omitted). And in our
Circuit, it “is well-settled that the mere occurrence of a mishap
does not prove that the mishap resulted from tortious conduct.”
Ins. Co. of the W. v. Island Dream Homes, Inc., 679 F.3d 1295, 1299
(11th Cir. 2012) (quotation omitted). Instead, “the plaintiff bears
the burden of proving that the defendant’s negligence more likely
than not caused the injury.” Aycock v. R.J. Reynolds Tobacco Co., 769
F.3d 1063, 1069 (11th Cir. 2014). In the admiralty context, res ipsa
loquitor does not relieve Seven from that burden—specifically, that
“the acts of negligence” were “a contributory and proximate cause
of the accident.” See Hercules Carriers, 768 F.2d at 1566. And there
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10 Opinion of the Court 22-13862
is still no factual consensus on what caused the explosion.3 Once
again, this inquiry collapses into assessing whether Seven
presented enough facts for the district court to rule that it had met
its burden—this time on causation. The court did not clearly err
by acknowledging that it had not.
The gross negligence arguments regarding Suntex run afoul
of these same causation problems. Because Seven did not present
enough evidence to show that any amount of blower usage would
have prevented an explosion, there is no evidence that Suntex’s
practices deviating from its manual proximately caused the
explosion, either. Regardless, a party’s “failure to apply certain
safety standards” alone does not constitute gross negligence. See
Flood v. Young Woman’s Christian Ass’n of Brunswick, Georgia, Inc.,
398 F.3d 1261, 1266 (11th Cir. 2005).4 The district court did not
clearly err in concluding that Suntex’s practices did not create gross
negligence in this instance.
3 Seven often discusses a similarly located explosion on Kuhl’s boat when it
was owned by someone else. But correlation does not equal causation. And
the two instances are not even comparable. The previous owner identified
and replaced the defective part, and never had issues with the vessel again.
And the old owner installed the new blowers that Kuhl used after this accident.
4 To the extent that Seven bases its gross negligence claim on Suntex’s
employees’ decision not to fight the fire and to await the fire department, that
practice was consistent with Suntex’s manual, which encouraged prompt
evacuation at the “slightest doubt about your ability to fight a fire.” And
Seven’s own boating safety expert did not testify that there was any statute,
rule, or regulation requiring Kuhl or Suntex staff to fight the fire themselves.
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22-13862 Opinion of the Court 11
In sum, most of Seven’s arguments are attempts to avoid the
natural result of our clear-error review. But none succeed, and
Seven has identified no clear error. We have no basis to disturb the
district court’s conclusions that Suntex was not grossly negligent,
and that Kuhl was not negligent, which defeated Seven’s claims and
entitled Kuhl to limitation of liability in any event.
* * *
We AFFIRM the district court’s trial judgment.
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