08-1224 | Omnilex

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KEVIN MESSINA,

# UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term, 2008

(Argued: April 20, 2009

Decided: July 31, 2009)

Docket No. 08-1224-Cv

In the Matter of the Complaint of KEVIN MESSINA, as
Owner of the Wave Runner Sunset Runner, for
Exoneration from and Limitation of Liability.

Petitioner-Appellant,

\- V. -

JOHN A. WHITE, MICHAEL MURRAY,

Claimants-Appellees.

Before: KEARSE, SACK, and LIVINGSTON, Circuit Judges.

Appeal from a judgment of the United States District Court
for the Eastern District of New York, Viktor V. Pohorelsky,
Magistrate Judge, denying jet ski owner's request pursuant to
46 U.S.C. § 30505 for exoneration from, or limitation of,
liability for maritime accident.

Affirmed.

JAMES E. FORDE, New York, New York
(Hill, Betts & Nash, New York,
New York, on the brief), for
Petitioner-Appellant.

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ANDREW S. BUZIN, New York,

New

York

(Bradley S. Zimmerman,

The

Jacob

D. Fuchsberg Law Firm,

New

York,

New York, on the

brief),

for

Claimaint-Appellee White.

DOUGLAS FALCH, White Plains,

New

York

(Penino & Moynihan, White

Plains,

New York, on the

brief),

for

Claimaint-Appellee Murray.

KEARSE, Circuit Judge:

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Petitioner Kevin Messina appeals from a final judgment of
the United States District Court for the Eastern District of New
York, following a bench trial before Viktor V. Pohorelsky,
Magistrate Judge, denying his petition under the Limitation of
Liability Act, 46 U.S.C. §§ 30501-30512, for exoneration from, or
limitation of, liability for any injuries to claimants John White
and Michael Murray resulting from the allision of a water craft,
owned by Messina and operated by Murray, with White. The district
court denied Messina's petition, finding that the accident was the
result of negligence and unseaworthiness, of which Messina did not
lack "privity or knowledge, " 46 U.S.C. § 30505 (b) . On appeal,
Messina contends that the district court erred in finding that the
vessel was unseaworthy and in imputing privity and knowledge to
him. Finding no error in the district court's findings of fact or
conclusions of law, we affirm.

The basic events are undisputed. Messina is the owner of
the Sunset Runner, a water craft of the type commonly referred to
as a wave runner or jet ski. On February 20, 2004, Murray and
White, among others, were guests at Messina's beach house in
Florida, on the Gulf of Mexico. While the Sunset Runner was being
operated by Murray, towing Messina on an inner tube attached to
the Sunset Runner by a 50-foot rope, and White was standing next
to a beached wave runner, the Pelican Runner, also owned by
Messina, the inner tube carrying Messina struck White and knocked
him into the Pelican Runner.

A. Messina's Suit for Exoneration or Limitation of Liability

In December 2006, White commenced an action against
Messina and Murray in New York Supreme Court, Kings County,
seeking an unspecified amount of damages for injuries resulting
from the accident. The Limitation of Liability Act (or the "Act")
provides that, within six months after receiving a claim, a vessel
owner may bring a civil action in federal court, seeking a
judgment exonerating him or limiting his liability. See 46 U.S.C.
§ 30511 (a) . When the owner brings such a suit and posts security

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in accordance with 46 U.S.C. § 30511 (b), the pursuit of all claims
against the owner related to the matter in question ceases,
pending determination of the petition for exoneration or
limitation of liability. See id. § 30511 (c) .
\- 3 -

In March 2007, Messina commenced the present action in the
district court. His amended complaint, in accordance with
§ 30511, petitioned for a judgment pursuant to 46 U.S.C. § 30505,
which provides, in pertinent part, that the liability of a vessel
owner for injuries from a collision "occasioned [] or incurred []
without the privity or knowledge of the owner" "shall not exceed
the value of the vessel and pending freight, " id. §§ 30505 (a) and
(b). The complaint alleged that the February 20, 2004 allision
was not the fault of the Sunset Runner or Messina and requested
judgment either exonerating Messina from liability for any
injuries that resulted from the accident or limiting his liability
to the value of the Sunset Runner and the inner tube, which the
complaint alleged totaled $6,286.61.

Both White and Murray filed answers disputing Messina's
entitlement to exoneration or limitation of liability. White
asserted that he had a claim for damages for his injuries; and
Murray claimed entitlement to contribution from Messina with
respect to any judgment that might be entered against Murray in
favor of White. The parties agreed to have the trial as to
Messina's entitlement under the Act conducted by a magistrate
judge.

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B. The Trial and the Findings of the District Court

At the one-day bench trial, the witnesses testified to the
basic events described above. In addition, White testified that
prior to the accident, Messina had been towed by Murray for some

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20-25 minutes, during which White heard Messina yelling to Murray
to go faster. (See Trial Transcript February 6, 2008 ("Tr. "), at
111.) At one point, Murray had begun to bring Messina back to
shore, but Messina wanted to continue. (See id.) According to
deposition testimony from Murray that was introduced at trial, it
was at that point that Messina instructed him to go faster. (See
id. at 150-51.) When Murray subsequently brought Messina toward
the shore, leading to the accident, White did not see them because
he was facing the beached Pelican Runner and had his back to the
Gulf. Messina, in the inner tube, crashed into White's back,
knocking White into the Pelican Runner.

Messina testified that shortly after Murray had begun
towing him, he asked Murray to go faster because Murray "was going
extremely slow. He was being very cautious." (Tr. 48.) At some
point, Messina noticed some of his guests on the beach gesturing
that they wanted to have a ride, and he instructed Murray to take
him ashore. (See id. at 81-82.) Murray complied by executing a
boomerang-shaped turn, designed to propel the inner tube carrying
Messina to the shore. Messina said he did not know exactly how
fast the tube approached the shore; but, he testified, "I was
brought in at a little bit higher speed than -- than I think was
good" (id. at 32) ; Murray "did bring me in too fast" (id. at 51) .

Messina testified that he was heading toward White, who
had his back turned. (See Tr. 75-76.) Messina testified that he
yelled a warning (see id. at 33); White testified that he heard
no such warning (see id. at 111-13) .

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Messina testified that he had had no reason to believe
that Murray had ever before operated a wave runner in an unsafe
manner. Messina said he was aware that operating a water craft
requires more skill if it is towing a tube than if it is not (see
Tr. 54), and he testified as follows:

Q. . . . [P]rior to the -- to going -- to giving
Michael Murray permission to ride the Sunset Runner,
you never asked him whether he towed anybody on an
inner tube before, did you?

A. Yes, I did.

Q. And you asked him whether he had towed
someone of your size on an inner tube before?

A. No.

(Id. at 63; see also id. at 112 (Messina was about 5'10" or 5'11"
tall and weighed close to 300 pounds) . )

Murray, in his deposition testimony, stated that he had
operated wave runners for many years, "since [his] earliest
memory" (Tr. 133-34 (internal quotation marks omitted) ). He
testified that he had no conversations with Messina about wave
runner safety. (See id. at 141.)

In a decision announced on the record on February 11,
2008 ("Decision Tr. "), the district court concluded that Messina
was not entitled to exoneration or limitation of liability,
finding that the Sunset Runner was unseaworthy and was operated
negligently, and that these conditions were within the privity and
knowledge of Messina. The court noted that " [t]he burden of
proving negligence or unseaworthiness rests with the claimant";
but " [t]he burden of proving lack of knowledge or privity rests

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with the petitioner." (Decision Tr. 5.) The court found, inter

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alia, that

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[p]rior to the incident, Murray had been towing
Messina aboard the inner tube for about 20 minutes.
During that time Messina directed Murray's operation
of the wave runner by instructing him to increase the
speed at which it was moving.

(Id. at 3.) The court noted that at one point, Murray approached
the shore to allow Messina to disembark, but retreated because
Messina wanted to continue; after more towing, Messina instructed
Murray to take him to the shore. (See id. at 3-4.) The court

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found that

[a]s he approached the shore the second time,
Murray guided the inner tube toward the shore at a
speed greater than prudent given the presence of
other people at the shore.

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As he approached the shore for the purpose of
guiding Messina ashore the second time, Murray failed
to see John White and two other persons standing at
or near the shoreline. Murray also failed to see the
other wave runner which had been beached at the
shoreline and alongside of which John White was then
standing.

As a result of his failure to see White and the
wave runner at the shoreline, and as a result of the
greater than prudent speed at which he was guiding
the inner tube ashore, Murray's operation of The
Sunset Runner caused the inner tube to strike White
at or very near the shoreline causing the injuries
suffered by White.

31 (Id. at 4.)

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The court noted as a matter of law that " [a] vessel is
unseaworthy if it is being operated by an incompetent crew" (id.
at 6 (citing Matter of Guglielmo, 897 F.2d 58, 61 (2d Cir. 1990)
( "Guglielmo" ) ) ) .
Finding that "Murray was not sufficiently
competent to operate The Sunset Runner while towing an inner tube

and while attempting to guide an inner tube to the shore, " the
court concluded that "Murray's lack of competence to operate The
Sunset Runner while towing an inner tube and attempting to guide
the inner tube to the shore rendered The Sunset Runner
unseaworthy." (Decision Tr. 7.) The court concluded that " [t]he
claimants have met their burden of proving that acts of negligence
and conditions of unseaworthiness caused the injuries suffered by
White, " based on its findings that, inter alia,

Murray operated The Sunset Runner in a negligent and
incompetent manner by attempting to quide the inner
tube in which Messina was riding to the shore in an
area where other persons and water craft were
positioned.

Murray operated The Sunset Runner in a
negligent and incompetent manner when attempting to
guide the inner tube to the shore by driving it at a
speed greater than prudent .

Murray operated The Sunset Runner in a
negligent and incompetent manner when attempting to
guide the inner tube to the shore by failing to keep
a proper lookout .

(Id. at 6-7 (emphases added) . )

The district court noted that the determination as to
"whether acts of negligence or conditions of unseaworthiness are
within the 'knowledge or privity' of the owner is a fact specific
undertaking." (Id. at 5.) As to those issues, it found that

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[p]rior to permitting Murray to tow the inner
tube that day, Messina asked Murray whether he had
ever towed an inner tube and Murray replied that he
had. This is the only evidence adduced by Messina as
to his knowledge of Murray's prior experience in
operating a wave runner while pulling an inner tube.

(Id. at 3.) The court noted as a matter of law that

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[w]here an owner entrusts his vessel to another
to operate, it is not enough for a boat owner to
harbor a subjective belief that the operator is
competent. Ignorance of a reason to suspect
incompetence is not enough. Any belief that the
operator is competent must be based upon evidence of
competence that renders the belief objectively
reasonable.

(Decision Tr. 6 (citing Guglielmo, 897 F.2d at 62) (emphases
added) .) It found that

[b]ecause Messina entrusted The Sunset Runner to
the operation of Murray, and because he has not
provided evidence that would justify his subjective
belief in Murray's competence, the unseaworthiness of
The Sunset Runner was within his knowledge or
privity.

(Decision Tr. 8.) The court concluded that

[t]he petitioner, Messina, has failed to meet
his burden of establishing that the above acts of
negligence and condition of unseaworthiness were
without his knowledge or privity.

Because Messina directed Murray in the operation
of The Sunset Runner, both as to the speed to be
maintained and as to instructing Murray to quide him
ashore in the inner tube, Messina directed the
specific course of conduct that caused White's injury
and the conduct fell therefore within Messina's
knowledge or privity. See In Re Singapore Navigation
Company, 540 F.2d [39,] 44 [ (2d Cir. 1976) ].

Messina has not demonstrated that he had
sufficient evidence of Murray's competence to operate
The Sunset Runner in guiding an inner tube to the
shore. Messina's statement that he had no reason to
believe Murray was not competent to operate The
Sunset Runner is not sufficient as it is simply a
subjective belief unsupported by adequate evidence to
make the belief objectively reasonable.

(Decision Tr. 7-8 (emphases added) .) The court concluded that
" [b]ecause the acts of negligence and the condition of
unseaworthiness that caused John White's injuries w[ere] within
the knowledge and privity of the petitioner, the petition for

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limitation of liability must be denied. See 46 USC Section
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30505." (Decision Tr. 8.) Judgment was entered accordingly.

# II. DISCUSSION

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On appeal, Messina contends that the district court should
have found him blameless on the basis that he entrusted the wave
runner to an operator whose competence he had verified, that the
accident was caused by a pure navigational error by the competent
operator, that such an error does not constitute unseaworthiness,
and that the navigational error could not be imputed to Messina.
We reject these contentions because Messina's premises are not
supported by the record and are contrary to the factual findings
of the district court, which are not clearly erroneous.

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# A. The Limitation of Liability Act

The Limitation of Liability Act, 46 U.S.C. §§ 30501-30512,
which from 1983 to 2006 was codified at 46 U.S.C. App. §§ 181-189,
and appeared prior thereto in, inter alia, Rev. Stat. §§ 4281-
4287, 4289 (1875), provides, with exceptions not pertinent here,
that

the liability of the owner of a vessel for any claim,
debt, or liability described in subsection (b) shall
not exceed the value of the vessel and pending
freight.

(b) Claims subject to limitation. -- Unless
otherwise excluded by law, . . . liabilities subject
to limitation under subsection (a) are those arising
from any embezzlement, loss, or destruction of any
property, goods, or merchandise shipped or put on

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board the

vessel,

any loss, damage,

or injury by

collision,

any

act,

matter,

thing,

loss,

damage,

forfeiture,

done,

occasioned,

incurred,

without the privity or

knowledge of the

owner.

46 U.S.C. §§ 30505 (a) and (b) (emphases added) . " [P] leasure
craft, " as well as commercial vessels, "are subject to the Act's
limitation on liability." Guglielmo, 897 F.2d at 61.

The phrase "privity or knowledge" is a "term of art
meaning complicity in the fault that caused the accident."
Blackler v. F. Jacobus Transportation Co., 243 F.2d 733, 735 (2d
Cir. 1957) ; see, e.g., Tug Ocean Prince, Inc. v. United States,
584 F.2d 1151, 1159 (2d Cir. 1978) ("Tug Ocean Prince"), cert.
denied, 440 U.S. 959 (1979) ; The 84-H, 296 F. 427, 431 (2d Cir.
1923), cert. denied, 264 U.S. 596 (1924); see also Potomac
Transport, Inc. v. Ogden Marine, Inc., 909 F.2d 42, 46 (2d Cir.
1990) ("Privity and knowledge under the statute have been
construed to mean that a shipowner knew or should have known that
a certain condition existed." (internal quotation marks omitted) ) .
"In the case of individual owners, it has been commonly held or
declared that privity as used in the statute means some personal
participation of the owner in the fault or negligence which caused
or contributed to the loss or injury. " Coryell v. Phipps, 317
U.S. 406, 411 (1943) (citing The 84-H, 296 F. 427). "Where the
owner's negligent act caused the alleged injury . . . all of the
requirements of 'privity' are satisfied." Tug Ocean Prince, 584
F.2d at 1159 (other internal quotation marks omitted) . The effect
of the Act and its predecessors is "to enable the vessel owner to

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limit his risk to his interest in the ship in respect to all
claims arising out of the conduct of the master and crew
while leaving him liable for his own fault [ and] neglect." The
84-H, 296 F. at 431; see, e.g., In re City of New York, 522 F.3d
279, 283 (2d Cir. 2008) ("Instead of being vicariously liable for
the full extent of any injuries caused by the negligence of the
captain or crew employed to operate the ship, the owner's
liability is limited . . . unless the owner himself had 'privity
or knowledge' of the negligent acts. ") .

"Privity, like knowledge, turns on the facts of particular
cases . "
Coryell, 317 U.S. at 411. In considering a vessel
owner's petition for exoneration or limitation of liability, the
district court will normally be required to conduct a two-step
inquiry. First, the court must determine whether the accident was
caused by conduct that is actionable, for " [i]f there was no fault
or negligence for the shipowner to be 'privy' to or have
'knowledge' of within the meaning of the statute, there is no
liability to be limited, " The 84-H, 296 F. at 432, and the owner
would then be entitled to exoneration. As to the question of
whether the accident was caused by actionable conduct, the burden
of proof is on the claimant. See, e.g., Guglielmo, 897 F.2d at
61; In re Marine Sulphur Queen, 460 F.2d 89, 99 (2d Cir.), cert.
denied, 409 U.S. 982 (1972). If the claimant carries that burden,
the owner then has the burden of proving that the actionable
conduct or condition was without his privity or knowledge. See,
e.g., id. at 101.

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Certain well established admiralty principles are relevant
to these issues in the present case. First, a vessel owner has a
duty to use "due and proper care" to provide a competent crew.
Tug Ocean Prince, 584 F.2d at 1155; see, e.g., Guglielmo, 897 F.2d
at 61. An injury occurring because of the owner's neglect of that
duty is within the owner's privity. See, e.g., id. at 61; Tug
Ocean Prince, 584 F.2d at 1155. To satisfy the due-and-proper-
care standard, the owner's belief in the competence of the person
to whom he is entrusting the vessel must have an objectively
reasonable basis. See, e.g., Guglielmo, 897 F.2d at 61-62. A
vessel owner is not entitled to limited liability as a matter of
law merely because he subjectively believed the person he has
allowed to operate his craft was competent. " [I]gnorance of a
reason to suspect incompetence is not enough. . . . [I]t is not
enough for a boat owner to harbor a subjective belief that an
operator is competent. That belief must be based on evidence of
competence that renders the belief objectively reasonable. "
Guglielmo, 897 F.2d at 62; see, e.g., id. at 61 ("Boat owners may
not assume that would-be operators are competent until proven
otherwise. ") . When an owner entrusts the operation of his vessel
to an inexperienced person, he destroys any argument he might have
had for limitation of his liability. See, e.g., Tug Ocean Prince,
584 F.2d at 1159. "Whether the evidence available to a boat owner
concerning a non-professional operator is sufficient to support a
reasonable belief in the operator's competence is up to the trier

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of fact to determine in light of all the circumstances."
Guglielmo, 897 F.2d at 62.

Second, " [s]eaworthiness is a relative term depending upon
its application to the type of vessel and the nature of the
voyage. The general rule is that the vessel must be staunch,
strong, well equipped for the intended voyage and manned by a
competent and skillful master of sound judgment and discretion. "
Tug Ocean Prince, 584 F.2d at 1155 (emphasis added) . Thus, a
vessel being operated by an incompetent captain or crew is
considered unseaworthy. See, e.g., id .; Potomac Transport, Inc.
v. Ogden Marine, Inc., 909 F.2d at 47; Guglielmo, 897 F.2d at 61.
Further, "[i]t is hornbook law that when a moving vessel strikes a
stationary object an inference of negligence arises and the owner
of the vessel then has the burden of rebutting such inference."
Tug Ocean Prince, 584 F.2d at 1159 (internal quotation marks
omitted) .

In sum, although "the mere presence on board of an owner
does not constitute such privity as will preclude limitation of
the owner's liability, " Complaint of Interstate Towing Co., 717
F.2d 752, 754 (2d Cir. 1983); see, e.g., Blackler v. Jacobus
Transportation Co., 243 F.2d at 735, if the owner, "by prior
action or inaction set into motion a chain of circumstances which
may be a contributing cause even though not the immediate or
proximate cause of a casualty, the right to limitation is properly
denied, " Tug Ocean Prince, 584 F.2d at 1158.

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B. Application to the Present Case

In reviewing a judgment entered after a bench trial, we
are to "give due regard to the trial court's opportunity to judge
the witnesses' credibility, " and we "must not . . . set aside" the
district court's findings of fact "unless [they are] clearly
erroneous." Fed. R. Civ. P. 52 (a) (6); see, e.g., Anderson v.
Bessemer City, 470 U.S. 564, 573-74 (1985) ; Banker v. Nighswander,
8 Martin & Mitchell, 37 F.3d 866, 870 (2d Cir. 1994). "Under this
standard, factual findings by the district court will not be upset
unless we are 'left with the definite and firm conviction that a
mistake has been committed. '" FDIC v. Providence College, 115
F.3d 136, 140 (2d Cir. 1997) (quoting United States v. U.S. Gypsum
Co., 333 U.S. 364, 395 (1948)). "Where there are two permissible
views of the evidence, the factfinder's choice between them cannot
be clearly erroneous." Anderson v. Bessemer City, 470 U.S. at
574. We review the district court's conclusions of law, and its
application of the law to the facts, de novo. See, e.g., Henry v.
Champlain Enterprises, Inc., 445 F.3d 610, 617-18, 623 (2d Cir.
2006) ; FDIC v. Providence College, 115 F.3d at 140.

We see no error in the district court's application of the
above principles in the present case, nor any clear error in its
essential findings of fact. Although Messina argues that he was
entitled to exoneration or limitation of liability on the basis
that he entrusted the Sunset Runner to a competent captain and
that a mere navigational error by a competent captain does not
make a vessel unseaworthy, these arguments are meritless given

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that the district court, as set forth in Part I.B. above, found
that Messina had not produced sufficient evidence to show that he
had an objectively reasonable basis for believing that Murray was
competent to operate the Sunset Runner while towing Messina.
Although Messina argues that he "had verified that Murray had
towed people with an inner tube in the past" (Messina brief on
appeal at 18 (citing Tr. 63) ), the record provides no support for
this assertion. Messina's testimony at the cited page, the
relevant portion of which is quoted in full in Part I.A. above,
was simply that he "asked" Murray whether Murray had towed anyone
on an inner tube before (Tr. 63); and although the district court
apparently assumed that Murray had responded affirmatively,
nowhere in the record is there any evidence of what Murray
answered. In response to our inquiry at oral argument as to
whether there was any evidence as to Murray's answer to Messina's
question, Messina's counsel stated, "It does not appear that it
came out in the record . . . . "

Further, Messina's contention that the accident was caused
by a mere navigational error on the part of Murray that should not
be imputed to Messina is likewise meritless given the district
court's explicit findings of fact as to how and why the accident
occurred. As set forth in Part I.B. above, the court found that
the accident had been occasioned by "acts of negligence and
conditions of unseaworthiness" in several ways, including Murray's
directing the inner tube carrying Messina toward an area where
there were other people, and operating the Sunset Runner "at a

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speed greater than prudent" (Decision Tr. 4, 6), and that "Messina
directed Murray in the operation of The Sunset Runner, both as to
the speed to be maintained and as to instructing Murray to guide
him ashore in the inner tube" (id. at 7) .

These findings are amply supported by the evidence.
Messina testified that when Murray started out slowly and
"cautious [ly], " Messina instructed him to go faster. (See Tr.
48.) White and Murray also testified that Messina had directed
Murray to go faster. (See id. at 111, 150-51.) After Messina
directed Murray to get him back to the shore because his guests
wanted to ride the inner tube, Messina knew the tube was
approaching the shore too fast. (See, e.g., id. at 32 ("I was
brought in at a little bit higher speed than -- than I think was
good") ; id. at 51 (Murray "did bring me in too fast") ; id.
(Messina " [w] ithout a doubt" would have crashed into the Pelican
Runner itself if White had not been standing where he was) .) And
although Messina was coming in too fast and was heading directly
toward White, who had his back turned (see id. at 75-76), there is
no evidence that Messina instructed Murray either to slow down or
to retreat to deeper water in order to make a new attempt to get
Messina to shore at a more appropriate pace.

Finally, although Messina contends that the district
court, in making its findings, misapplied the law by citing
Singapore Navigation Co., S/A v. Mego Corp., 540 F.2d 39 (2d Cir.
1976), because that case involved a deviation from route, we see
no error. The district court, in citing Singapore Navigation (see

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Decision Tr. 5-6, 7), did not suggest that the present case
involved a deviation; it cited only to the page of that opinion at
which we held that the vessel owner was not entitled to limitation
of liability for the loss because its president had "personally
ordered the deviation and the deviation was causally connected to
the loss, " 540 F.2d at 44. The personal participation parallel is
inescapable here, where Messina's inner tube crashed into White
because it was moving too fast to be stopped, and where Messina
had previously told Murray to go faster and did not tell him to
slow down, even as Messina could see that the inner tube was
rushing toward White, who was standing at or near the shoreline
with his back turned.

# CONCLUSION

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We have considered all of Messina's arguments on this
appeal and have found them to be without merit. The judgment of
16 the district court denying Messina's petition for exoneration or
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limitation of liability is affirmed.

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August Term, 2008 Argued: April 20, 2009 Decided: July 31, 2009 Docket No.… v. - John A. White, Michael Murray

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