On February 15, 2012, the Florida Yacht Brokers Association in conjunction with the Fort Lauderdale Mariners' Club and Show Management had their Second Annual Boat Show Kick-Off Party to benefit the Shake-a-Leg Foundation. Lots of Mojitos, beers and other libations were had, while the guests mambo-ed and networked their way to through the great party.
Below is a picture at the event: pictured below from left to right is Christopher Karentz of SEA, his wife Lesley from the Star Center, my husband, Manuel F. Valdes from the Law Offices of Manuel F. Valdes and your humble blogger, Michelle, now of Chalos & Co.
If you are interested in learning more about the Fort Lauderdale Mariners' Club, you may click here: http://www.ftlmc.org/. A disclaimer here--I have been a member of the Fort Lauderdale Mariners' Club for several years. It is a great group of people and I have forged many friendships throughout the years in this organization.
If you want to learn more about Shake-a-Leg Miami, feel free to click here: http://www.shakealegmiami.org/site/c.kkLUJbMQKpH/b.2521629/k.BF03/Home.htm. A second disclaimer here--prior to having kids, I routinely gave of my time at Shake-a-Leg, as it was a way to keep the sailing skills learned back during my summer vacations going. I highly recommend this charity if you are looking for a wonderful place to give that is meaningful to our marine community.
Breach of Bailment Case Fails to Succeed in Middle District
In the case of ACE AMERICAN INSURANCE COMPANY v. FIRST CHOICE MARINE, INC., 23 Fla. L. Weekly Fed. D160a (Fla. M.D. Jul. 29, 2010), reported recently in the Florida Law Weekly of February 21, 2012, the U.S. District Court for Middle District of Florida, Tampa Division held that an insurer's claim against a defendant for breach of oral bailment contract cannot succeed, even if the plaintiff were granted leave to amend, because the plaintiff did not, and cannot, allege that the plaintiff's insured put his boat and engines within exclusive possession of defendant.
The court found that the allegation that vessel owner took his boat and engines to boat repair dealer for warranty repairs to be performed excludes any possibility that vessel owner put his boat and engines within exclusive possession of defendant. The court further found that while the complaint states a claim for breach of warranty of workmanlike performance as to oral contract for warranty repairs to engines on vessel, which the plaintiff's insured entered into with defendant manufacturer, the provisions of the limited warranty agreement indicating intent of parties that the authorized dealer would perform warranty repairs, not manufacturer itself, excludes breach of contract claim based on manufacturer's implied duty to perform the warranty repairs itself.
The court also reviewed the enforceability of the limitation of liability clause as set out in the contract between the parties and found that the disclaimer and express limitation of liability are set off in a separate box and are stated in plain English in bold-faced capital letters. Therefore, the court found that the limitation clause does not absolve defendant manufacturer of all liability and provides a deterrent to negligence, and plaintiff insurer has alleged no facts from which court can infer overreaching.
If you are interested in receiving a complete copy of this decision or wish to reach me, you may do so by writing to me atmiamipandi@comcast.net or mov@chaloslaw.com.
Another Court Finds Owner Snoozed on Right to Limit Liability
The Fifth Circuit Court of Appeals in the case of Eckstein Marine Service L.L.C., et al. v. Jackson, Case No. 10-20600, held that the district court did not err in concluding that the six-month deadline to file a limitation action was triggered when claimant delivered his complaint to plaintiff on April 28, 2009, and that plaintiff's January 18, 2010 petition was untimely filed. The appellate court concluded that the district court did not abuse its discretion when it opted not to hold an evidentiary hearing on claimant's motion to dismiss. Accordingly, the court affirmed the judgment of the district court.
This case arose when claimant served plaintiff with a complaint, alleging that his injuries were caused by the unseaworthiness of the M/V St. Andrew and by the negligence of plaintiff and its employees. Claimant became entangled in a line and was pulled into a mooring bit, seriously injuring his left leg. Following a state court trial, claimant won a judgment in excess of $750,000 and plaintiff subsequently appealed. On appeal, plaintiff challenged the district court's dismissal of its limitation action under the U.S. Limitation of Shipowner's Liability Act as untimely. Because a challenge to the timeliness of a limitation action was a challenge to the district court's subject matter jurisdiction and because plaintiff had notice claimant was mounting such a challenge in his motion to dismiss, the district court did not err by construing plaintiff's motion as a Rule 12(b)(1) jurisdictional attack.
A complete copy of the decision can be found athttp://law.justia.com/cases/federal/appellate-courts/ca5/10-20600/10-20600-2012-02-22.html.
Dick Lapidus Dies at 79
It is with great sadness that I am reporting the death of Dick Lapidus, an attorney by profession and an adventurer and good friend by nature.
I remember being his crew while we were with the US Coast Guard Auxiliary aboard his vessel, CORMORANT. It was my favorite vessel to crew for, as Dick was a great boater, smart guy and took good care of his crew. It was Dick that suggested I sign up to obtain my coxswain's certification with the Auxiliary. I did, but shortly thereafter, I found out I was pregnant with my first daughter. So, coxswain's certification was not in the cards for me, but I continued to crew on Dick's boat until the doctor said "no more boats for a while."
Dick's death appears to have been a tragic accident. At 79, Dick was still working out and practicing law part time. In is reported in the Miami Herald that Dick fell while getting out of the University of Miami Wellness Center pool, hitting his head and dying the next day. This is particularly more tragic as Dick had just battled (and won against) non-Hodgkins lymphoma. My heart goes out to Dick's wife, Wendy, and his family.
I have the obituary notice and a very nice article about Dick from the Miami Herald. If you are interested in receiving a copy of either, please feel free to contact me at miamipandi@comcast.netor mov@chaloslaw.com.