             Case: 18-10374    Date Filed: 06/06/2018   Page: 1 of 17


                                                                        [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 18-10374
                          ________________________

                     D.C. Docket No. 1:17-cv-22856-KMW



JOHN MINOTT,

                                                               Plaintiff-Appellant,
                                      versus

M/Y BRUNELLO,
Official No. 71147, her engines, tackle, and appurtenances, in rem,
BRUNELLO YACHT CHARTERS, LTD.,
a foreign corporation, as owner of the M/Y Brunello,
DERECKTOR FLORIDA, INC.,
a Florida corporation,
XYZ CORPORATION(S),
marine contractors,
JOHN DOE,
as captain of the M/Y Brunello,
                                                             Defendants-Appellees.

                          ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                          _______________________

                                  (June 6, 2018)

Before MARCUS, WILLIAM PRYOR, and ROSENBAUM, Circuit Judges.
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WILLIAM PRYOR, Circuit Judge:

      This appeal from the denial of a warrant in rem for the arrest of a vessel

requires us to decide whether we have interlocutory jurisdiction, and if so, whether

John Minott established that the injury he allegedly suffered while boarding the

Brunello entitles him to a warrant in rem for the arrest of the vessel. Minott filed a

complaint against the Brunello and other parties alleging that he was entitled to

enforce a maritime lien against the Brunello for damages arising from a maritime

tort. He then moved the district court to direct the clerk to issue a warrant in rem

for the arrest of the Brunello, but the district court denied the motion. In addition to

expressing doubt about whether Minott’s claim fell within its maritime jurisdiction,

28 U.S.C. § 1333, the district court ruled that Minott’s claim did not “give[] rise to

a ‘maritime lien’ supporting the in rem seizure of the [v]essel” based on the

erroneous premise that maritime liens arise only by statute and not by operation of

the general maritime law. It also denied Minott’s motion for reconsideration. We

have interlocutory jurisdiction, id. § 1292(a)(3), Minott’s claim for a maritime tort

against the Brunello falls within the admiralty jurisdiction of the district court, id.

§ 1333(1), and Minott is entitled to a warrant in rem, Fed. R. Civ. P. Supp. R.

C(3)(a)(i). We reverse and remand with instructions to direct the clerk to issue a

warrant in rem for the arrest of the Brunello.




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                                  I. BACKGROUND

      John Minott worked for Butch Kemp Designs, a marine engineering firm

hired to perform maintenance and repairs aboard the Brunello while it was docked

in navigable waters in Dania, Florida. Minott attempted to board the vessel, but

when he was walking up the gangway “the [v]essel[’s] captain or crew, suddenly

and without warning, put the engines in gear, causing the gangway . . . to detach

from the [v]essel and fall overboard, together with [Minott].” Minott suffered

“severe injuries to his head, neck, and spine.”

      Minott filed a “verified complaint to enforce a maritime lien for damages

arising from a maritime tort” in the district court. See Fed. R. Civ. P. 9(h); S.D.

Fla. Adm. & Mar. R. B(2). The complaint asserted an in rem claim against the

Brunello and in personam claims against other individual and corporate

defendants. Minott then moved the district court to direct the clerk to issue a

warrant in rem for the arrest of the vessel. See Fed. R. Civ. P. Supp. R. C(3)(a)(i);

S.D. Fla. Adm. & Mar. R. B(3)(a). He explained that the tort was “cognizable

under admiralty jurisdiction,” that he was “entitled to a maritime lien,” that he was

“entitled to arrest the [v]essel and litigate directly against [it] in rem,” and that the

vessel was “transitory in nature and at risk of leaving the jurisdiction of [the

district court] if not immediately arrested.”




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       The district court denied the motion without prejudice after finding that

Minott failed to “establish good cause for the issuance of a warrant in rem.” It

concluded that a maritime tort cannot “form the basis for a maritime lien” and cited

a federal statute, 46 U.S.C. § 31342, that grants a lien to “a person providing

necessaries to a vessel.” The district court also explained that its “uncertainty”

whether Minott’s “claim [fell] under maritime jurisdiction . . . weigh[ed] against

issuing a warrant.” Although it did not decide the question, the district court

suggested that it lacked jurisdiction because Minott’s “activity . . . [was] not

significantly tied to maritime activity” and his accident had “minimal” potential to

“disrupt[] . . . maritime commerce.”

       Minott moved for reconsideration and cited caselaw where plaintiffs filed in

rem actions against vessels for maritime torts. The district court denied the motion.

It explained that Minott’s original motion sought a warrant only “based on 46

U.S.C. [section] 31301(5)(B)” and that he could not “raise [new] arguments” that

he was “entitled to a warrant of arrest under [other] authorities.” It also explained

that these authorities “still . . . [failed to] convince [it] that alleged tort victims . . .

are entitled to issuance of a warrant of arrest in rem upon filing a complaint.”

       Minott appealed and invoked our interlocutory jurisdiction, 28 U.S.C.

§ 1292(a)(3).




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                            II. STANDARD OF REVIEW

       “Whether a party’s claim[] give[s] rise to a maritime lien is a legal question

that is reviewed de novo,” Salvors, Inc. v. Unidentified Wrecked & Abandoned

Vessel, 861 F.3d 1278, 1297 (11th Cir. 2017), as is “[t]he [d]istrict [c]ourt’s

application of admiralty law and the local rules implementing that law,”

Isbrandtsen Marine Servs. v. M/V Inagua Tania, 93 F.3d 728, 733 (11th Cir.

1996). Under Federal Rule of Civil Procedure Supplemental Rule C, we review the

facts alleged in the “complaint and . . . supporting papers” to determine “[i]f the

conditions for an in rem action [and warrant] appear to exist.” Fed. R. Civ. P.

Supp. R. C(3)(a)(i) (italics added).

                                  III. DISCUSSION

       We divide our discussion in two parts. First, we explain that we have

interlocutory jurisdiction over this appeal. Second, we explain that the district court

erred when it refused to direct the clerk to issue a warrant in rem for the arrest of

the Brunello.

                    A.     We Have Interlocutory Jurisdiction.

       We have interlocutory jurisdiction over appeals from “decrees of . . . district

courts . . . [that] determin[e] the rights and liabilities of the parties to admiralty

cases in which appeals from final decrees are allowed.” 28 U.S.C. § 1292(a)(3).

“As a general rule, a district court’s order resolving one or more claims on the



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merits is appealable under [section] 1292(a)(3), irrespective of any claims that

remain pending.” Sea Lane Bahamas Ltd. v. Europa Cruises Corp., 188 F.3d 1317,

1321 (11th Cir. 1999). For example, we “ha[ve] jurisdiction over the appeal of an

order dismissing on the merits one or more parties from an action.” Id. (collecting

cases); see also Nichols v. Barwick, 792 F.2d 1520, 1522 (11th Cir. 1986) (“Not all

the rights and liabilities of the parties need be determined before such an order is

appealable.”); Trinidad Foundry & Fabricating, Ltd. v. M/V K.A.S. Camilla, 966

F.2d 613, 614 & n.1 (11th Cir. 1992). But we lack jurisdiction “when the order

appealed from ‘does not reach the merits of the claim and in no way determines,

denies, or prejudices any substantive rights of the parties.’” Sea Lane Bahamas,

188 F.3d at 1321 (quoting Jensenius v. Texaco, Inc., 639 F.2d 1342, 1343 (5th Cir.

Unit A Mar. 1981)).

      The refusal of the district court to issue a warrant in rem for the arrest of the

Brunello falls within our interlocutory jurisdiction because it has the effect of a

final order that “reach[es] the merits of the claim” and “prejudices [the] substantive

rights of [Minott].” Id. (quoting Jensenius, 639 F.2d at 1343). To be sure, the

decision refusing to arrest the Brunello did not resolve Minott’s claims against the

other defendants. But it resolved his claim against the vessel, and he is entitled to

immediate review of that decision.




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      The refusal to arrest the Brunello resolved the question of the vessel’s

liability because “[a]ttachment subjecting the res to the jurisdiction of the court is a

prerequisite to a finding of in rem liability.” Dow Chem. Co. v. The Barge UM-

23B, 424 F.2d 307, 311 (5th Cir. 1970) (italics added). For example, in The Pesaro

the Supreme Court exercised interlocutory jurisdiction over a “decree” that

released a vessel from arrest but did not “formally” “dismiss the libel.” 255 U.S.

216, 217 (1921). The Supreme Court explained that although the “decree . . . [did]

not dismiss the libel,” this detail was not “decisive” because “[t]he decree . . .

declare[d] [that the vessel was] not subject to any such process[,] . . . direct[ed] her

release . . ., [and] end[ed] the suit as effectually as if it formally dismissed the

libel.” Id. In short, although the question whether to arrest a vessel arises at the

beginning of litigation, it also “reach[es] the merits of the claim,” Sea Lane

Bahamas, 188 F.3d at 1321 (quoting Jensenius, 639 F.2d at 1343), because it

necessarily dictates jurisdiction and liability.

      More importantly, a failure to arrest a vessel “prejudices [the] substantive

rights of the parties” in the light of the mobile nature of vessels. Id. (quoting

Jensenius, 639 F.2d at 1343). If a vessel leaves the jurisdiction while the district

court is resolving claims against other defendants, the plaintiff risks forever losing

his “substantive” right to “enforce a maritime lien,” Trinidad, 966 F.2d at 615,

because “where the res is no longer before the court, . . . in rem jurisdiction is



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destroyed” and the district court “can[not] proceed to adjudication.” L.B. Harvey

Marine, Inc. v. M/V River Arc, 712 F.2d 458, 459 (11th Cir. 1983) (italics added).

The Supreme Court highlighted this concern in Swift & Co. Packers v. Compania

Colombiana del Caribe, S.A., when it exercised interlocutory jurisdiction over “an

order . . . vacating a foreign attachment of a vessel.” 339 U.S. 684, 685 (1950); see

also id. at 688–89. The Supreme Court explained that “[a]ppellate review of [an]

order dissolving [an] attachment at a later date would be an empty rite after the

vessel had been released and the restoration of the attachment only theoretically

possible,” id. at 689, and it underscored that the question of attachment “f[e]ll in

that small class [of orders] which finally determine claims of right separable from

. . . rights asserted in the action . . . [that are] too important to be denied review and

too independent of the cause itself to require that appellate consideration be

deferred,” id. at 688–89 (quoting Cohen v. Beneficial Indus. Loan Corp, 337 U.S.

541, 546 (1949)); see also Puerto Rico Ports Auth. v. Barge Katy-B, 427 F.3d 93,

101 (1st Cir. 2005) (explaining that concerns of “effective finality” establish that

“an order vacating an arrest finally determines the rights and liabilities of the

parties within the meaning of section 1292(a)(3)”). Because Minott’s present

inability to proceed in rem against the Brunello may become permanent if the

vessel departs the district, we have interlocutory jurisdiction.




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B.     The District Court Erred when It Refused To Direct the Clerk To Issue a
                Warrant In Rem for the Arrest of the Brunello.

       We divide this section in two parts. First, we explain that the tort alleged in

the complaint falls within the admiralty jurisdiction of the district court. Second,

we explain that this maritime tort entitles Minott to proceed in rem against the

Brunello and obligates the district court to direct the clerk to issue a warrant in rem

for the vessel’s arrest.

          1.     The Alleged Incident Falls Within Admiralty Jurisdiction.

       The Constitution grants federal courts power over “all Cases of admiralty

and maritime Jurisdiction.” U.S. Const. art. III, § 2; cf. 28 U.S.C. § 1333. Maritime

jurisdiction over torts is based on the location of the incident and a nexus to

maritime activity. See 1 Thomas J. Schoenbaum, Admiralty & Maritime Law § 3-5

(5th ed. 2017). A district court has jurisdiction if the tort “occurred on navigable

water or . . . [occurred] on land [but] was caused by a vessel on navigable water,”

and if the tort “ha[d] sufficient connection with maritime activity.” Alderman v.

Pac. N. Victor, Inc., 95 F.3d 1061, 1064 (11th Cir. 1996) (quoting Jerome B.

Grubart Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534 (1995)).

       The “connection” element of this test for maritime-tort jurisdiction “raises

two issues.” Id. “First, we are required to assess the general features of the type of

accident involved . . . to determine whether the incident has a potentially disruptive

impact on maritime commerce.” Id. (quoting Grubart, 513 U.S. at 534) (internal


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quotation marks omitted). A plaintiff can satisfy this requirement by alleging

“[u]nsafe working conditions aboard a vessel under repairs, maintenance, or

conversion” because an accident caused by such conditions “could have the

potential to disrupt further repairs of that vessel, vessels being worked on at the

same dock, or vessels waiting to be worked upon.” Id. “Second, we must determine

whether the general character of the activity giving rise to the incident shows a

substantial relationship to traditional maritime activity.” Id. (quoting Grubart, 513

U.S at 534) (internal quotation marks omitted). This inquiry looks to “the activities

of the tortfeasor” and encompasses a “broad” range of conduct, including

“conversions, repairs, or maintenance aboard a vessel in navigable water.” Id. at

1065.

        The district court suggested, without deciding, that it lacked admiralty

jurisdiction. It underscored that Minott’s fall had “minimal” “potential[]” to

“disrupt[] . . . maritime commerce . . . [because] any rescue effort would likely

occur from land.” And it explained that “[t]he general character of [Minott’s]

activity—walking to the boat—[was] not significantly tied to maritime activity.”

The district court concluded that its “uncertainty” about this question “weigh[ed]

against issuing a warrant.” We disagree.

        Minott clearly alleged a maritime tort. The incident “occurred on navigable

water,” id. at 1064 (citation and internal quotation marks omitted), when the



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Brunello was docked in Dania, Florida. Although Minott was not yet aboard the

vessel when the gangway collapsed, “[i]t is well established that traditional

maritime law encompasses the gangway.” White v. United States, 53 F.3d 43, 46

(4th Cir. 1995). For example, in The Admiral Peoples, the Supreme Court

explained that admiralty jurisdiction extended to an accident where a

“disembarking . . . [passenger] was injured by falling from a gangplank leading

from the vessel to the dock,” 295 U.S. 649, 650 (1935), because the gangplank

“was no less part of the vessel because in its extension to the dock it projected over

the land,” id. at 651–52. To be sure, the Supreme Court mentioned that “while [the

passenger] was on the gangplank, she had not yet left the vessel.” Id. at 652

(emphasis added). But this observation about the passenger’s direction of travel

does not affect the “basic fact . . . that the gangplank [is] a part of the vessel.” Id. at

651. If anything, Minott’s injury is a stronger candidate for admiralty jurisdiction

because he fell into the water, unlike the passenger in The Admiral Peoples who

“was violently thrown forward upon the dock.” Id. at 652. Our predecessor circuit

also explained in O’Keeffe v. Atlantic Stevedoring Co., 354 F.2d 48 (5th Cir.

1965), that a plaintiff “sustained his injury over navigable water,” id. at 50, when

he was “lifted . . . from the dock” where he was working by a winch and struck

either “the dock . . . [or] the side of the ship” before he fell into the water and

drowned, id. at 49. And even if Minott’s injury had occurred on land, it was



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“caused by” the vessel, Alderman, 95 F.3d at 1064, when its “captain or crew . . .

put the engines in gear.” An injury caused by a vessel in navigable waters is a

maritime tort.

      The incident satisfied the first element of the “connection test” because the

“general features of [this] type of accident . . . [had] a potentially disruptive impact

on maritime commerce.” Id. (citation and internal quotation marks omitted).

Minott’s employer had been hired to “perform maintenance and repairs aboard the

. . . Brunello,” and Minott’s injury threatened “to disrupt further repairs of that

vessel,” not to mention the repairs of “vessels being worked on at the same dock

. . . [and] vessels waiting to be worked upon.” Id. The district court overlooked

these consequences when it narrowly considered only the possibility of a “rescue

effort [that] would likely occur from land” and failed to contemplate the potential

impact of worker injuries on maritime commerce. To be sure, this particular

accident may not have had widespread effects, but “[w]hether or not disruption

resulted here is of no moment.” Id.

      On the second element, “the general character of the activity giving rise to

[Minott’s accident] shows a substantial relationship to traditional maritime

activity.” Id. (citation and internal quotation marks omitted). The district court

focused on the activities of Minott when it explained that his “activity—walking to

the boat—[was] not significantly tied to maritime activity.” But this analysis



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considered the actions of the incorrect party because we look instead to “the

activities of the [alleged] tortfeasor”—in this case, the Brunello. Id. at 1065

(emphasis added). Minott alleged that the gangway fell when “the [v]essel captain

or crew . . . put the engines in gear,” and the operation and movement of a vessel in

navigable waters are quintessential “maritime activit[ies].” Id. at 1064. That the

incident occurred when the vessel was docked for “maintenance and repairs” also

underscores its maritime quality, for “[w]ork upon ships . . . docked in navigable

waterways is an indispensable maritime activity.” Id. at 1065.

    2.       Minott is Entitled to a Warrant In Rem for the Arrest of the Brunello.

         A vessel is “an entity apart from its owner” that “is liable . . . for torts,”

Merchants Nat’l Bank of Mobile v. Dredge Gen. G. L. Gillespie, 663 F.2d 1338,

1345 (5th Cir. Unit A Dec. 1981), and a maritime tort gives the victim a lien

against the vessel “by operation of the general maritime law,” Schoenbaum, supra,

at § 9-1. This “lien is created as soon as the claim comes into being,” and the

“principle [of an automatic lien] . . . [is] equally applicable to all claims . . . which

can be enforced in admiralty against the ship, whether arising out of tort or of

contract.” The John G. Stevens, 170 U.S. 113, 117 (1898); see also The Bird of

Paradise, 72 U.S. 545, 554, 555 (1866) (explaining that “[s]hip-owners,

unquestionably, as a general rule, have a lien upon the cargo for the freight” that

“arises from the usages of commerce, independently of the agreement of the



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parties, and not from any statutory regulations”); Craddock v. M/Y The Golden

Rule, 110 F. Supp. 3d 1267, 1276 (S.D. Fla. 2015) (“A maritime lien attaches and

is perfected by operation of law when the claim arises.”); Riverway Co. v. Spivey

Marine & Harbor Serv., 598 F. Supp. 909, 912 (S.D. Ill. 1984) (“The creation of a

maritime lien requires no judicial action; the lien is a right of the injured party

which arises at the moment of the breach or tort and attaches to the res.” (citing

The Bold Boccleaugh, 13 Eng. Rep. 884 (1851))).

      “Federal district courts obtain in rem jurisdiction over a vessel when a

maritime lien attaches to it,” Crimson Yachts v. Betty Lyn II Motor Yacht, 603 F.3d

864, 868 (11th Cir. 2010), and “[u]nder traditional admiralty law, maritime

property is subject to arrest in order to enforce a maritime lien,” Merchants Nat’l

Bank, 663 F.2d at 1345. “Upon [the] filing [of] an in rem complaint, the clerk of

court issues a warrant for the arrest of the res.” Crimson Yachts, 603 F.3d at 868.

This process is controlled by Supplemental Rule C, which provides that “[a]n

action in rem may be brought . . . [t]o enforce any maritime lien,” Fed. R. Civ. P.

Supp. R. C(1) (italics added), and that, “[i]f the conditions for an in rem action

appear to exist, the court must issue an order directing the clerk to issue a warrant

for the arrest of the vessel,” id. Fed. R. Civ. P. Supp. R. C(3)(a)(i) (emphasis and

italics added); see also S.D. Fla. Adm. & Mar. R. B.




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       The district court ruled that Minott “failed to establish that his negligence

claim [gave] rise to a ‘maritime lien’ supporting the in rem seizure of the [v]essel.”

It ruled that maritime liens are exclusively “governed by 46 U.S.C. [section]

31342,” which addresses materialmen’s liens. It then underscored that this statute

“provides that only a ‘person providing necessaries to a vessel’ has a maritime lien

and corresponding right to bring a civil action in rem,” and that “[t]he applicable

statutes and rules do not expressly contemplate that a ‘maritime tort’ can form the

basis for a ‘maritime lien.’” The district court concluded that in rem proceedings

for torts would be “untenable and contrary to the applicable law.” And it chastised

Minott for failing to cite more than one “authority that would allow for the arrest of

a vessel [for a tort].”

       The district court erred. The authority cited by Minott, Craddock, 110 F.

Supp. 3d at 1276, correctly stated that a maritime tort gives the victim a lien

against the vessel. See id. (explaining that the plaintiff “has alleged a maritime

tort” and that “[i]t follows that [he] has a maritime lien” because “[a] maritime lien

attaches and is perfected by operation of law when the claim arises”). Indeed, the

“characteristic maritime liens recognized under United States law” include

“[c]laims for maritime torts including personal injury.” Schoenbaum, supra, at § 9-

1. And contrary to the reasoning of the district court that section 31342 is the only

font for maritime liens and in rem proceedings, “[m]ost maritime liens arise by



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operation of the general maritime law.” Id. To be sure, Congress can change

maritime law, but nothing in section 31342, which addresses the completely

different question of materialmen’s liens, abrogates Minott’s ability to assert a tort

claim. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of

Legal Texts 318 (2012) (“A statute will be construed to alter the common law only

when that disposition is clear.”); cf. Atl. Sounding Co. v. Townsend, 557 U.S. 404,

416 (2009) (explaining that “Congress was envisioning the continued availability

of . . . common-law causes of action” “for injured seamen” when it passed the

Jones Act to confer additional statutory rights). Indeed, federal courts have long

acknowledged a wide variety of maritime liens “arising out of services rendered to

or injuries caused by [a vessel].” Schoenbaum, supra, at § 9-1 (emphasis added)

(collecting cases). And Minott cited several authorities dating to the 1800s that

establish that a vessel’s tort grants the injured victim an automatic lien. See, e.g.,

The Anaces, 93 F. 240 (4th Cir. 1899). In short, his “prima facie showing that [he

had] an action in rem against the [Brunello] . . . and that the [Brunello] [was]

within the district,” Craddock, 110 F. Supp. 3d at 1277, obligated the district court

to “order . . . the clerk to issue a warrant for the arrest of the vessel,” Fed. R. Civ.

P. Supp. R. C(3)(a)(i).




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                                IV. CONCLUSION

      We REVERSE and REMAND with instructions for the district court to

enter an order directing the clerk to issue a warrant for the arrest of the Brunello.




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