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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
FORT LAUDERDALE DIVISION

CASE NO.: 06-61040-CIV-MARRA/SELTZER

CHANTELL K. CLAIRMONT, as personal

representative of the estate of Louis Clairmont,
deceased,

Plaintiff,

go

SUN TERMINALS, INC., and KING OCEAN

SERVICES, LIMITED,

Defendants.

MOTION TO DISMISS BY DEFENDANT, KING OCEAN SERVICES, LIMITED

COMES NOW Defendant KING OCEAN SERVICES, LIMITED ("KING OCEAN"),

by and through its undersigned attorneys, and pursuant to Local Rule 12(B)(6)of the Federal

Rules of Civil Procedure, moves this Court for an Order dismissing the Complaint of the

Plaintiffon the grounds as set forth herein,

l. INTRODUCTION

Plaintiff has invoked this Court’s diversity jurisdiction under 28 U.S.C. § 1332 or in the

alternative its admiralty jurisdiction under 28 U,S.C. § 1333.

CHANTELL K. CLAIRMONT ("CLAIRMONT") as personal representative of the

Estate of Louis Clairmont (the "Decedent") has sued Defendants SUN TERMINALS, INC.

("SUN TERMINALS") and KING OCEAN for claims arising out of an accident which allegedly

occurred on March 25, 2006, while the Decedent was on board the vesel M/V Berulan engaged

in the loading and discharging of cargo. At the time of the accident the vessel was docked at

Port Everglades, Florida. CLAIRMONT has alleged that while the Decedent was working as
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a longshoreman aboard the M/V Berulan he was crushed to death between a container and the

superstructure of the vessel. CLAIRMONT alleges that she is a nominal party representing the

estate of the Decedent and is the surviving spouse. (see par. 5 of Complaint). She has not

attached to the Complaint any pleadings showing that she is the authorized and designated

personal representative of the Decedent’s Estate, or specifically any letters of administration.

CLAII~MONT has brought three (3) wrongful death claims against SUN TERMINALS

and KING OCEAN under the Florida Wrongful Death Act (FWDA) §768.19, as well as two

claims under the Longshore and Harbor Workers’ Compensation Act (LHWCA) 33 U.S.C.

§905(a) and (b). All of the the claims are premised on negligence. She has alleged that SUN

TERMINALS ~vas the Decedent’s employer and that SUN TERMINALS employed

longshoremen and other personnel for the purpose of the loading and unloading of ships. (See

pars. 3 and 6 of Complaint). In contrast, she has alleged that KING OCEAN chartered and

operated the M/V Berulan. ~

I1. PLAINTIFF HAS NOT ESTABLISHED THAT SHE IS THE PERSONAL

REPRESENTATIVE AND THUS LACKS STANDING

Here, CLAIRMONT must show that she holds the status of legal representative of the

Decedent’s estate in order to have standing to sue. She has not met this burden.

Pursuant to Florida Statute 768.20 a wrongful death action may be brought only by the

personal representative for the benefit of the decedent’s survivors and estate. See Florida

Emerge~c), Physicia~s-Ka~g a~d Associates M.D.P.A. v. ParA’er, 800 So.2d 631,633 (Fla. 5~h

DCA 2001 ). The personal representative is a nominal party and the estate and survivors are the

~ha actuality KING OCEAN acted as the time charterer of the M/V Berulan.
It had no
operational control over the vessel or cargo operations.
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real parties in interest. See id. at 633. F.S. §768.20. The FWDA does not define the term

personal representative. However, F.S. § 731.201 (25) of the Probate Code does and provides:

"Personal representative" means the fiduciary appointed by the

[circuit] court to administer the estate and refers to what has been
known as an administrator, administrator cure testamento annexo,
administrator de bonis non, ancillary administrator, ancillary
executor, or executor.

The purpose of requiring that a wrongful death action under the FWDA be brought by

the personal representative is to eliminate the possibility of a multiplicity of suits by competing

beneficiaries and avoid a race to judgment. See Hess v. Hess, 758 So.2d 1203, 1204-05 (Fla. 4’h

DCA 2000).2 In order to establish that the person is in fact the personal representative and

authorized to bring suit on behalf of the decedent’s estate and beneficiaries, a probate action

must be commenced and letters of administration naming the personal representative must be

issued by the Court.3 See id. at 1204; see also Funchess v. Gldf Stream Apartments, 611 So.2d

43, 44-45 (Fla. 4~ DCA 1992).

Consistent with Florida Law in wrongful death actions brought under federal maritime

law, the U.S. Supreme Court has held that a personal representative is the court-appointed

e In contrast, Alhalia Clairmont has alleged that she is the surviving spouse of the Decedent
with surviving children as she has filed a Claim for Death Benefits against Sun Terminals, Inc. under
the LHWCA. (See Claim for Death Benefits a copyofwhich is attached as Exhibit "A".) Pursuant
to Federal Rule of Evidence 201,902, 1005 and/or other applicable law, KING OCEAN requests
that this Honorable Court take judicial notice of the the pleadings, orders and documentation filed
in the pending LHWCA worker’s compensation proceeding against SUN TERMINALS when
considering the instant Motion to Dismiss.

-~ Letters of administration means authority granted by the court to the personal representative
to act on behalf of the estate of the decedent and refers to what has been known as letters
testamentary and letters of administration. All letters shall be designated "letters of administration."
F.S. § 731.201(22). "Estate" means the property of a decedent that is the subject of administration.
F.S. § 731.201(12).
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executor or administrator of the decedent’s estate. See BHggs v. l~’alker, 171 U.S. 466,472-473

19 S.Ct. 1, 3, 43 L.Ed. 243 (1898), cited with authority in Calton v. Zapata of Lex&gton, 811

F.2d 919,921 (5th Cir. 1987); see also I~9, v. SecuriO, Barge Lines, 585 F.2d 732,734 (5th Cir.

1978) (when decedent’s father lost his position as administrator of the decedent’s estate, he also

lost the authority to sue as personal representative); Marcano v. Offshore Venezuela, CA. 497

F.Supp. 204,207-08 (E.D. La. 1980) (as a matter of federal law a widow could not sue unless

some court had designated her as the administrator of the decedent’s estate, applying Rule 25

(a)(1) of the Fed. R.Civ.P.); Smith v. Eastern Seaboard Pile Driving, 604 F.2d 789 (2d Cir.

1979) (widow of worker covered by LHWCA and suing for wrongful death under Section 905(b)

was the administratix of her deceased husband’s estate); Minnick v. U.S. 767 F.Supp.

115(E.D.Va. 1990) (widow of worker covered by LHWCA and suing for wrongful death under

Section 905(b)was the administratix of her deceased husband’s estate).4

Here, there is no evidence that any circuit court of the State of Florida has designated

CHANTELL CLAIRMONT as either the executor or administrator of the Decedent’s estate and

therefore the action should be dismissed. The same requirement holds true under 33 U.S.C. §

905(a) or (b) of the LHWCA. See e.g., Briggs, supra., Iv.v, supra, Marcano, supra., Smith,

supra., Mimfick, supra.

~ CHANTELL CLAIRMONT and Alhalia Clainnont both claim to be the widows of the
Decedent. Under Section 902 (16) of the LHWCA a widow is defined as "only the decedent’s wife
or husband living with or dependent for support upon him or her at the time of his or her death; or
living apart for justifiable cause or by reason of his or her desertion at such time." 33 U.S.C. §
902(16).

4
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|II. CLAIRMONT HAS NO RIGHT TO BRING A CLAIM AGAINST KING

OCEAN UNDER SECTION 905(a) OF THE LHWCA

The LHWCA establishes a comprehensive federal worker’s compensation program for

longshoremen and their families. 33 U.S.C .§901 etseq. A claim under Section 905(a) is strictly’

limited to an action against the employer as the LHWCA requires the employer of the injured

longshoreman, the stevedore,5 to pay compensation to injured workers. 33 U.S.C. §904,905(a)~

See Tran v. Manitowoc Engineering Co., 767 F.2d 223,226 (5~h Cir. 1985). Under the LHWCA,

employers are liable to their employees for workers compensation and such liability is exclusive

~ A stevedore is responsible for loading and unloading a vessel. See Colgate Palmolive v.
S/SDart Canada, 724 F.2d 313,316 n,6 (2d Cir. 1983).

§905. Exclusiveness of liability

(a) Employer liability; failure ofernployer to secure paylnent of compensation

The liability of an employer prescribed in section 904 of this title shall be exclusive and in place of
all other liability of such employer to the employee, his legal representative, husband or wife,
parents, dependents, next of kin, and anyone othe~vise entitled to recover damages from such
employer at law or in admiralty on account of such injury or death, except that if an employer fails
to secure payment of compensation as required by this chapter, an injured en~ployee, or his legal
representative in case death results from the injury, may elect to claim compensation under the
chapter, or to maintain an action at law or in admiralty for damages on account of such injury or
death.

§904. Liability for compensation

(a) Every employer shall be liable for and shall secure the payment his employees of the
compensation payable under sections 907,908, and 909 at this title. In the case of an employer who
is subcontractor, only if such subcontractor fails to secure the payment of compensation shall the
contractor be liable for and be required to secure the payment of compensation. A subcontractor
shall not be deemed to have failed to secure the payment of compensation if the contractor has
provided insurance for such compensation for the benefit of the subcontractor.

(b) Compensation shall be payable irrespective of fault as a cause of the injury.

5
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and in place of all other liability. See ~Vilford Burnett v. A. Bottachi S.A. de Navegacion, 882

F.Supp. 1050, 1053 (S.D. Fla. 1994).

Here, CLAIRMONT has alleged that the Decedent was an employee of Co-Defendant

SUN TERMINALS at the time of his death. (See pars. 5 and 12 of Complaint). Further,

CLAIRMONT has alleged that SUN TERMINALS was required to secure LHWCA coverage.

(See par. 14 of Complaint). There is no allegation that KING OCEAN was his employer. Since

KING OCEAN was not the the Decedent’s employer it had no obligation under Section 905 (a)

to secure compensation under the LHWCA for the benefit of the Decedent.

What also operates to defeat CLAIRMONT’s claim under Section 905(a) is that the other

alleged surviving spouse of the

Decedent Alhalia Clainnont has already filed a claim for

wrongful death benefits under

the LHWCA against SUN TERMINALS, the Decedent’s

employer. (See Exhibit "A").

IV. FEDERAL MARITIME LAW PREEMPTS THE FWDA CLAIM

In Counts II and III of CLAIRMONT’S Complaint she has brought claims under the

FWDA (Count II), and LHWCA 905(b).7 Section 905(b) provides the employee/longshoreman

7 33 U.S.C. § 905 (b) provides:

Negligence of Vessel

In the event of injury to a person covered under this chapter caused

by the negligence of a vessel, then such person, or anyone othelwise
entitled to recover damages by reason thereof, may bring an action
agains such vessel as a third party in accordance with the provisions
of Section 933 of this title... The liability of the vessel shall not be
based upon the warranty of seaworthiness or a breach thereof at the
time the injury occurred. The remedy provided in this subsection
shall be exclusive of all other remedies against the vessel except
remedies available under this chapter.
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with the right to bring an action against a vessel owner for damages caused by the owner’s

negligence. See Manitowoc Engineering, 767 F.2d at 226. As will be discussed below,

CLAIRMONT’S FWDA claim is preempted by the Section 905 (b) claim.

The Supreme Court in Moragane v. Stales Marine Lines, Inc., 398 U.S. 375,380 (1970)

held that a cause of action for wrongful death was available under general maritime law. The

Moragane wrongful death action preempts state xvrongful death statutes within the area of

admiralty jurisdiction. See Gonzalez v. MV Destiny, 2002 AMC 2524, 2530 (S.D. Fla. 2002),

citing with authority in The Matter of SSHelena, 529 F. 2d 744,748 (5~h Cir. 1976); Law v. Sea

Dwelling Corp., 523 F. 2d 793,796 (5’h Cir. 1975).

In an attempt to avoid preemption CLAIRMONT has alleged that the Decedent was a

non-seaman/seafarer so as to bring her claim within the exception provided by the U.S. Supreme

Court in Famaha ]~tolor Corp. U.S.A.v. Calhoun, 516 U.S. 189, 116 S.Ct. 619, 133 L.Ed. 2~a

578 (1996). A non-seafarer is one who is not a seaman or longshore worker covered by the

LHWCA. See id. In Calhoun, the U.S. Supreme Court held that "Federal Maritime Law does

not prevent application of state wrongful death remedies in an accident case where the decedent

is not a seaman, longshore worker or person otherwise engaged in a maritime trade." See id.

Here, the exception established in Calhoun does not apply because it is undisputed that

the Decedent was a longshore worker who was killed on a vessel in navigable waters and while

33 U.S.C. § 933 (a) provides:

If on account of a disability or death for which compensation is

payable under this chapter the person entitled to such compensation
determines that some person other than the employer or a person or
persons in his employ is liable in damages, he need not elect whether
to receive such compensation or to recover damages against such
third person.

7
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engaged in traditional maritime employment, i.e., the loading and discharging of cargo aboard

a vessel,s Therefore, the Decedent was a seafarer/longshore worker within the meaning of the

LHWCA. See Ghotra v. Bandila Shipping, Inc., 113 F.3d 1050, 1058-60 (9th Cir. 1997).

Since the Decedent was a longshore worker, federal maritime law preempts

CLAIRMONT’S FWDA action and as such, the LHWCA provides the exclusive remedy for the

decedent’s death. See Ghotra 113 F.3d at 1058-60; see also Helaire v. Mobil Oil Co., 709 F.2d

103 l, 1042 (5~h Cir. 1983) (exclusivity provisions of the LHWCA precluded state law negligence

claim)9; see also Gonzalez, 2002 AMC at 2530 (holding that since the Jones Act and general

maritime law provided a claim for wrongful death the FWDA claim was preempted).~° Any

argument raised by CLAIRMONT that she is unable to recover against the Decedent’s employer

does not take the Decedent out of the scope of the LHWCA. See Ghotra, 113 F.3d at 1059.~t

s In particular CLAIRMONT has pied: "At the time of his [Decedent’s] injury he was
working as a maritime employee of the Defendant SunTerminals, Inc. At the time of his injury he
was working in a maritime occupation as a longshoreman in a maritime situs aboard the M/V
Berulan." (See par. 5 of Complaint).

’~ Decisions of the United States Court of Appeals for the Fifth Circuit, as that Court existed
on September 30, 1981 handed down prior to the close of business on that date, are binding
precedent on the Eleventh Circuit established on October 1, 1981. See Bonnet v. Prichard, 661 F.2d
1206, 1207 (11 th Cir. 1981 ).
t0 While decisions of the fellow judges within the same district court are not binding they are
persuasive. See Fishman & Tobin, Inc. v. Tropical Construction Co., 240 F. 3d 956, 965 n. 14 (11t~
Cir. 2001 ).

~ The 11’h Circuit in American Dredging Co. v. Lambert, 81 F. 3d 127 (11~ Cir. 1996),
recognized that the exception established in Calhoun was limited to nonseamen and nonlongshore
workers. See id. at 130.
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V. AS A TIME CHARTERER WITH NO OPERATIONAL CONTROL KING

OCEAN CANNOT BE HELD LIABLE UNDER SECTION 905 (b) of the LHWCA

A "time charterer" is not expressly mentioned in the definition of vessel owner under Section

905(b) of the LHWCA. To that end, it is well-established law that a time charterer cannot be held

liable under Section 905(b) of the LHWCA when the time charterer has no operational control over

the vessel. See, H~o’es v. Wilh Wilhemsen Enterprises, Ltd., 818 F.2d 1557, 1559 (11’~’ Cir. 1987)

(a time charterer "assumes no liability for negligence of the crew or unseaworthiness of the vessel

absent an agreement to the contrary"). ~2 Here, KING OCEAN had no operational control over the

vessel and CLAIRMONT has not pled that under any agreement KING OCEAN had agreed to

assume liabilty for the negligence of the crew or unseaworthiness. Thus, as a matter of law an

action under Section 905 (b) cannot be maintained against it.

VI. CONCLUSION

All of CLA1RMONT’s claims whether under the FWDA or LHWCA should be dismissed

due to lack of standing, as no Florida Court has designated her as the personal representative of

the Decedent’s estate. No action will lie under Section 905(a) of the LHWCA as KING OCEAN

was not the employer of the Decedent. No action will lie against KING OCEAN under the

FWDA as federal maritime law preempts the FWDA and as such CLAIRMONT’s wrongful

death claim, if any, which is denied, is limited to one brought under Section 905(b) of the

LHWCA. Lastly, no cause of action can exist against KING OCEAN under Section 905 (b) of

12 A time charter is a contract to use a vessel for a particular period of time, although the
vessel owner retains possession and control. See T. Schoenbaurn, Admiralty and Maritime Law ~"
10-1, at 381 (1987).

9
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the LHWCA as it was merely acting as the time charterer with no operational control over the

vessel or cargo operations.

WHEREFORE, Defendant KING OCEAN SERVICES, LTD., respectfully requests that

this Court dismiss Plaintiffs’ Complaint with prejudice and award it all other relief which this

Court deems just and equitable.

Respectfully submitted,

/ ,/ ,

CharleS.G/be Leo
Fla. Bar No. 353485
Jan M. Kuylenstierna
Fla. Bar No. 375985

FOWLER WHITE BURNETT P.A.

Attorneys for Defendant King Ocean Services Limited
Espirito Santo Plaza, 14th Floor
1395 Brickell Avenue
Miami, Florida 33131
Telephone: (305) 789-9200
Facsimile: (305) 789-9201

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CASE NO,: 06-61040-CIV-MARRA/SELTZER

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the foregoing was mailed this 7th day of September, 2006 to:
G. ,I. Sullivan, Jr., Esq., Sullivan & Company, 8777 San Jose Boulevard, Suite 803,
Jacksonville, Florida 32217.

Jan IV~uyl’enstierna

W:’71239’~MTNDIS I 0.J MK ’,9/7/6-16:401

11