In re Everglades Island Boat Tours, LLC, 2007 WL 1200961 (M.D. Fla. Apr. 23, 2007)

Josh Clemons

On April 23 the U.S. District Court for the Middle District of Florida, Ft. Myers Division, ended the quest of Jonell and Robert Modys to recover for injuries allegedly sustained in an airboating accident by finding that the couple had no claim under federal maritime law.

Background
On December 19, 2005, Jonell Modys took a tour of the Everglades on a twenty-foot airboat owned by Everglades Island Boat Tours, LLC (Everglades Island) and piloted by William Anderson. Mr. Anderson and Ms. Modys were touring an area known to local airboat pilots as the “Big Bay” area. According to Ms. Modys, Mr. Anderson was operating the airboat at an excessively high speed and made an abrupt turn that caused her to be injured. Her injuries, she claimed, were substantial, permanent, and continuing in nature, and would not have occurred had Mr. Anderson been properly trained and/or supervised in the operation of the airboat.

Ms. Modys’ husband Robert alleged that he was harmed by the accident as well, albeit indirectly. He claimed that Ms. Modys’ injuries deprived him of the delightful intimacies that one expects from the marriage relationship – a deprivation described unromantically in law as “loss of consortium.” He and his wife filed suit against Everglades Island for compensation for this loss.

The Pivotal Question: Admiralty Jurisdiction?
The defendant argued that the court did not have jurisdiction to rule on this claim because the circumstances of the alleged accident invoked admiralty jurisdiction, which does not recognize the claim of loss of consortium. Admiralty jurisdiction over a tort claim requires the presence of two elements: (1) location of the incident on navigable waters (if the injury is suffered on land, it must have been caused by a vessel operating on navigable waters), and (2) connection with maritime activity.

The plaintiffs asserted that the waters on which the accident occurred are not “navigable” for the purposes of admiralty jurisdiction because they sometimes dry up during the dry season. In the court’s estimation this fact was insufficient to render the waters non-navigable. The traditional standard for navigability was established by the U.S. Supreme Court in 1870: “Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.”1 Without explicitly stating its reasoning the court declared that the Big Bay area meets this standard despite its periodic dryness.

The Modyses tried, but failed, to convince the court otherwise by citing two previous cases in which other courts had found wetlands to be non-navigable. In In re Bridges Enterprises the district court for the Southern District of Florida found that certain wetlands were not “navigable” because they were landlocked and used only by airboats, and thus insufficiently suited for interstate commerce.2 The court distinguished this case because the Big Bay area was connected via navigable channels to the Gulf of Mexico. In In re Katrina Canal Breaches Consolidated Litigation the district court for the Eastern District of Louisiana found certain wetlands not to be navigable for the purposes of establishing maritime jurisdiction.3 The Modyses seem to have tried to stretch that holding too far, however, as the court noted that the mere fact that wetlands are present does not mean that maritime jurisdiction is improper.

Thus, the “location” element of admiralty jurisdiction was satisfied. There was no reason for the court to delve deeply into the “connection with maritime activity” element, as the commercial operation of an airboat for sightseeing purposes unquestionably fulfilled that requirement.

Despite this setback the Modyses had one more argument to make: that the airboat did not qualify as a “vessel” for purposes of admiralty jurisdiction. Unfortunately for their cause the statutory definition of “vessel” encompasses “every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.”4 The court found that an airboat easily fits within this very broad definition.

No Claim in Maritime Law
When admiralty jurisdiction exists, as the court found it did here, maritime law applies. Unlike the law in typical states, maritime law does not recognize a claim for loss of consortium in a personal injury case “except in exceptional circumstances” or when there is intentional wrongdoing, neither of which was the case here.5

Conclusion
Because the district court, sitting in admiralty, did not have jurisdiction over the claim for loss of consortium, it granted Everglades Island’s motion to strike the claim.

Endnotes
1. The Daniel Ball, 77 U.S. 557 (1870).
2. No. 02-60270-CIV (S.D. Fla. Oct. 14, 2003).
3. No. 05-4182 (E.D. La. Mar. 9, 2007).
4. 1 U.S.C. § 3.
5. In re Everglades Island Boat Tours, LLC, 2007 WL 1200961 at *4 (M.D. Fla. Apr. 23, 2007).