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                                                                                   [PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 13-11092
                               ________________________

                         D.C. Docket No. 9:12-cv-80829-DMM



OFFSHORE OF THE PALM BEACHES, INC.,
a Florida Corporation,
d.b.a. Freedom Boat Club,
                                                          Petitioner - Appellant,

versus

LISA LYNCH,
                                                          Claimant - Appellee.

                               ________________________

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

                                     (February 3, 2014)

Before MARCUS, FAY, and WALKER, * Circuit Judges.

MARCUS, Circuit Judge:


*
  Honorable John Walker, Jr., United States Circuit Judge for the Second Circuit, sitting by
designation.
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      In this admiralty action, a boat owner, Offshore of the Palm Beaches, Inc.

(“Offshore”), appeals from a district court order that permitted a lone claimant,

Lisa Lynch, to pursue personal injury claims in state court after Offshore had

invoked the Limitation of Liability Act (“Limitation Act”), 46 U.S.C. § 30501

(2006). Offshore argues that its forum selection should control because Lynch lost

the race to the courthouse. Our case precedent instructs us that we have

jurisdiction to review the district court’s order as one dissolving or modifying an

injunction pursuant to 28 U.S.C. § 1292(a)(1). On the merits, we affirm. The

district court did not abuse its considerable discretion in determining that Lynch

may proceed first in state court with her tort claim before the district court

adjudicates the boat owner’s efforts to limit its liability to the value of the vessel.

                                            I.

      On October 13, 2011, Offshore owned and maintained a 2008 Everglades

27CC, a twenty-six foot vessel used as part of Offshore’s Freedom Boat Club.

Lynch and her husband, Michael, were members of the Club. That day the couple

took the boat to sea off Palm Beach County, Florida, where, five-hundred yards

from shore, they struck the wake of another craft. The concussion threw Lynch

from the bow bench into the air. Gravity brought her back to the boat, with an

impact she claims caused catastrophic physical injury. Specifically, Lynch alleges




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that Offshore’s negligence was to blame for damages well in excess of the vessel’s

$95,000 value.

       A few months after the incident, on February 6, 2012, attorney Darryl Kogan

wrote Offshore a letter noting his representation of Lynch and requesting the

company’s liability insurance information. Six months later, on August 6, 2012,

Offshore sued in the United States District Court for the Southern District of

Florida seeking exoneration or limitation of its liability to the value of the vessel

pursuant to the Limitation Act. Soon thereafter, the district court enjoined any

other cause of action against Offshore or the vessel relating to the incident.

       In her answer, Lynch asserted a claim for her extensive injuries based on

Offshore’s failure to exercise reasonable care. On October 22, she moved to

dismiss, stay, or lift the injunction to allow her to proceed in state court and try her

common law tort claim to a jury, invoking the single claimant exception to

exclusive federal admiralty jurisdiction otherwise reposed in the district court

under the Limitation Act. Following unambiguous case precedent, she included in

her motion a set of detailed stipulations designed to protect Offshore’s right to

litigate any limitation of liability in federal district court:

          Stipulations of Claimant in Support of Claimant’s Motion to
           Dismiss, Stay And/or Lift the Injunction in this Matter and
                 Permit the Claimant to Proceed in State Court

             Provided the Court lifts its Monition and Injunction of August
       10, 2012 (D.E. 6) and stays this action to permit the single Claimant to
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      proceed against the Petitioner in a state court action for personal
      injury, the single Claimant, LISA LYNCH, stipulates and agrees as
      follows:

            1.     That the Petitioner, OFFSHORE, has the right to litigate
      the issue of whether it is entitled to limit its liability under the
      provisions of the Limitation of Liability Act, 46 U.S.C. § [30501] et
      seq., in this Court, and this Court has exclusive jurisdiction to
      determine that issue.

            2.     That the Petitioner has the right to have this Court
      determine the value and the Petitioner’s interest in the vessel Model
      year 2008, Everglades 27CC, Bearing Hull Identification No.:
      PJDB1043B708 and any other vessel determined by this Court to be a
      proper part of the limitation fund, such value and interest to be the
      value and interest in the vessel(s) as provided by the applicable
      federal law immediately following the incident at issue, and this Court
      has exclusive jurisdiction to determine that issue.

             3.    That the Claimant will not seek a determination of the
      issues set forth in paragraphs (1) and (2) above in any state court, or
      any other forum outside of this limitation proceeding, and consents to
      waive any res judicata or issue preclusion effect the decisions, rulings
      or judgments of any state court, or any other forum outside of this
      limitation proceeding, might have on those issues.

             4.     That the Claimant will not seek to enforce any judgment
      rendered in any state court, or any other forum outside of this
      limitation proceeding, against the Petitioner that would expose the
      Petitioner to liability in excess of the limitation fund to be determined
      by this Court, until such time as this Court has adjudicated the
      Petitioner’s right to limit that liability. In the event this Court
      determines that the Petitioner is entitled to limit its liability, the
      Claimant agrees that it will not seek to enforce any judgment that
      would require the Petitioner to pay damages in excess of the limitation
      fund to be determined by this Court.

      On February 12, 2013, the district court entered a final default as to all

persons who did not file a timely claim or answer against the vessel. In fact,
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Lynch was the only claimant who had filed a claim with the court. On February

20, the district court entered an order (the one at issue today) that lifted the

injunction and stayed the federal proceeding in order to allow Lynch to litigate

Offshore’s liability in a Florida forum. The court directed the clerk to close the

case for administrative purposes. Offshore filed a timely notice of appeal. The

district court denied Offshore’s motion to stay its order pending appeal.

                                                 II.

       Offshore asserts that we have appellate jurisdiction to review the court’s

action as a final order pursuant to 28 U.S.C. § 1291, 1 or as a non-final order

determining “the rights and liabilities of the parties to admiralty cases” under

§ 1292(a)(3). 2 Lynch disagrees. Our case precedent instead compels the

conclusion that we have jurisdiction under § 1292(a)(1) to review the trial court’s

order modifying or dissolving an injunction. 3

       Early Fifth Circuit case-law held that parties could not appeal admiralty

orders that modified injunctions in limitation actions under the precursors to any of

1
 “[T]he courts of appeals . . . shall have jurisdiction of appeals from all final decisions of the
district courts of the United States . . . .” 28 U.S.C. § 1291.
2
 “[T]he courts of appeals shall have jurisdiction of appeals from: . . . (3) Interlocutory decrees of
such district courts or the judges thereof determining the rights and liabilities of the parties to
admiralty cases in which appeals from final decrees are allowed.” Id. § 1292(a).
3
  “[T]he courts of appeals shall have jurisdiction of appeals from: (1) Interlocutory orders of the
district courts of the United States . . . granting, continuing, modifying, refusing or dissolving
injunctions, or refusing to dissolve or modify injunctions . . . .” Id. (emphases added).


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the three provisions -- §§ 1291, 1292(a)(1), or 1292(a)(3).4 See Postal S.S. Co. v.

Int’l Freighting Corp., 133 F.2d 10, 11 (5th Cir. 1943); Stark v. Tex. Co., 88 F.2d

182, 183 (5th Cir. 1937). Applying a dated distinction between the law, equity,

and admiralty sides of a federal district court’s jurisdiction, these cases concluded

that interlocutory admiralty appeals fall within the explicit admiralty provision of

§ 1292(a)(3). 5 See Stark, 88 F.2d at 183 (“Appeals from interlocutory decrees in

admiralty . . . are allowed only when the interlocutory decree determines rights and

liabilities of the parties.”). In reaching this result, the early cases relied on

Schoenamsgruber v. Hamburg America Line, 294 U.S. 454, 457-58 (1935), which

held that federal jurisdiction to review orders affecting injunctions (§ 1292(a)(1))

“extends only to suits in equity” because the inclusion of the specific admiralty

provision of § 1292(a)(3) “indicates that Congress did not intend to make

appealable any other interlocutory decrees in admiralty.” In other words, the

specific admiralty grant in § 1292(a)(3) governed to the exclusion of the general

injunction provision in § 1292(a)(1). Moreover, because a stay in a limitation

action did not determine “the rights and liabilities of the parties,” the specific

admiralty provision in § 1292(a)(3) did not provide jurisdiction. See Postal S.S.,




4
 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as
binding all Fifth Circuit precedent handed down before October 1, 1981.
5
    At the time of these decisions, § 1292(a)(3) was codified at 28 U.S.C. § 227.
                                                  6
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133 F.2d at 11. Therefore, an appellate court could not review a district court

order modifying an injunction in a limitation action.

      In 1960, however, a panel of the Fifth Circuit in binding precedent held that

the Supreme Court had abrogated the Circuit’s earlier cases, Postal S.S. and Stark.

See Pershing Auto Rentals, Inc. v. Gaffney, 279 F.2d 546, 547-48 (5th Cir. 1960).

Pershing concluded that, in light of the Supreme Court’s decision in Lake Tankers

Corp. v. Henn, 354 U.S. 147 (1957), appellate jurisdiction existed under

§ 1292(a)(1) to review a modification to a Limitation Act injunction. 279 F.2d at

547-48. (“For accepting our prior decisions, Stark [and] Postal S.S., as holding to

the contrary, we think that Lake Tankers, in this context at least, requires that we

no longer adhere to them.” (citations omitted)).

      After Pershing, a series of Circuit cases permitted § 1292(a)(1) interlocutory

review of admiralty injunctions. Thus, for example, when a trial court enjoined

salvage operations at a wreck site, the former Fifth Circuit cited Pershing in

hearing an appeal that challenged the injunction:

      We do not . . . believe that § 1292(a)(3) provides the exclusive
      authorization for interlocutory appeals in admiralty. In admiralty
      cases where injunctive orders are entered which would be appealable
      under § 1292(a)(1) if entered in the course of an ordinary civil
      proceeding, interlocutory appeals will properly lie under that statutory
      provision. Prior to the unification of the admiralty rules with the
      federal civil rules it was generally presumed that the admiralty judge
      lacked the chancellor’s power to order injunctive relief; therefore, the
      question whether appeals could be taken from such orders in
      admiralty cases under § 1292(a)(1) was seldom posed. The question
                                          7
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      did, however, arise in the context of injunctions entered in limitation
      of liability proceedings which barred prosecution of other actions
      while the limitation action proceeded. We held that such injunctions,
      and orders modifying them, were appealable under § 1292(a)(1).

Treasure Salvors, Inc. v. Unidentified Wrecked & Abandoned Sailing Vessel, 640

F.2d 560, 564-65 (5th Cir. Mar. 1981) (emphasis added). Treasure Salvors also

cited approvingly to Wright and Miller, who thought it “plain that application of

§ 1292(a)(1) should depend on whether the district court has in fact issued or

denied an injunction, not on whether the proceedings are designated as in

admiralty. The policies permitting appeal are completely unaffected by the historic

distinction between law, equity, and admiralty jurisdiction.” Id. at 565 (quoting 16

Charles Alan Wright et al., Federal Practice and Procedure 113 (1977)); see also

16 Charles Alan Wright et al., Federal Practice and Procedure § 3927 (2d ed. 1996

& Supp. 2013) (opining that, in the context of § 1292(a)(1), “any residual

distinctions between admiralty and other civil actions are irrelevant”).

      Still other binding Circuit cases in the Limitation Act context have likewise

found appellate jurisdiction under § 1292(a)(1). See Complaint of Mucho K, Inc.,

578 F.2d 1156, 1157 (5th Cir. 1978) (“[W]e find the order independently

appealable as the granting, refusal, or modification of an injunction under

§ 1292(a)(1) . . . . See Pershing.” (citation omitted)); Beal v. Waltz, 309 F.2d 721,

723 (5th Cir. 1962) (citing Pershing and accepting § 1292(a)(1) jurisdiction to

review denial of a motion to modify an injunction in a limitation action); see also
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Beiswenger Enters. Corp. v. Carletta, 86 F.3d 1032 (11th Cir. 1996) (accepting

jurisdiction without discussion when both parties on appeal cited § 1292(a)(1)).

However, two cases -- one from the old Fifth Circuit and the other from this

Court -- continued to apply Postal S.S. and Stark as barring § 1292(a)(1)

interlocutory jurisdiction, without mentioning Pershing. See State Establishment

for Agric. Prod. Trading v. M/V Wesermunde, 770 F.2d 987, 990 (11th Cir. 1985);

Austracan, (U.S.A.) Inc. v. M/V Lemoncore, 500 F.2d 237, 240 (5th Cir. 1974).

      Under our prior precedent rule, we are bound to follow a binding precedent

in this Circuit “unless and until it is overruled by this court en banc or by the

Supreme Court.” United States v. Martinez, 606 F.3d 1303, 1305 (11th Cir. 2010)

(quoting United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008)).

We inherited this rule from the old Fifth Circuit, which had similarly deferred to

prior precedent. See, e.g., Davis v. Estelle, 529 F.2d 437, 441 (5th Cir. 1976).

Therefore, when faced with an intracircuit split, we look to the earliest case not

abrogated by the Supreme Court or by this Court sitting en banc. See Morrison v.

Amway Corp., 323 F.3d 920, 929 (11th Cir. 2003) (“[W]hen circuit authority is in

conflict, a panel should look to the line of authority containing the earliest case,

because a decision of a prior panel cannot be overturned by a later panel.” (quoting

Walker v. Mortham, 158 F.3d 1177, 1188 (11th Cir. 1998))). By holding that the

Supreme Court had abrogated the old Fifth Circuit decisions limiting § 1292(a)(1)


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interlocutory appeals in admiralty actions, Pershing in 1960 became the earliest

case to decide the issue we face today for purposes of measuring prior precedent.

Notwithstanding that some subsequent Circuit decisions overlooked Pershing, we

are obliged to follow it. We have § 1292(a)(1) jurisdiction.6

                                                    III.

          Turning then to the merits, we review a district court’s decision to stay a

limitation action arising under the Limitation Act and to modify a related

injunction for abuse of discretion. Lewis v. Lewis & Clark Marine, Inc., 531 U.S.

438, 440 (2001); Garrido v. Dudek, 731 F.3d 1152, 1158 (11th Cir. 2013). A

ruling based on an error of law is an abuse of discretion. Young v. New Process

Steel, LP, 419 F.3d 1201, 1203 (11th Cir. 2005).

          The Limitation Act plainly allows a vessel owner to limit its liability to the

value of the vessel for any claim arising from a maritime incident that occurred

“without the privity or knowledge of the owner.” 46 U.S.C. § 30505. 7 An owner


6
  Because Pershing makes clear that we have appellate jurisdiction under § 1292(a)(1), we need
not address whether we also might have jurisdiction under §§ 1291 or 1292(a)(3). Thus, we have
no occasion to consider whether the holdings in Postal S.S. and Stark concerning these sections
remain binding precedent in this Circuit.
7
    The Limitation Act provides in relevant part:

          (a) . . . [T]he 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) . . . Unless otherwise excluded by law, claims, debts, and liabilities subject to
          limitation under subsection (a) are those arising from any embezzlement, loss, or
                                                    10
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may bring a limitation action in federal district court within six months of

receiving written notice of a claim. Id. § 30511. The owner must deposit with the

district court an amount (or an approved security) equal to the value of the vessel.

Id. When the complaint and the deposit are submitted, “all claims and proceedings

against the owner related to the matter in question shall cease.” Id. The court then

is directed to issue notice to all persons asserting claims against the vessel arising

from the incident. Fed. R. Civ. P. Supp. R. F(4). The court may subsequently

enter a default against any potential claimants who have not submitted timely

filings. Those who do assert claims form a concursus that allows the district court

to determine the liability of the owner to each individual in a single proceeding,

constraining the total liability to the value of the vessel. See, e.g., Beiswenger, 86

F.3d at 1036 (“If the vessel owner is found liable, but limitation is granted, the

admiralty court distributes the limitation fund among the damage claimants in an

equitable proceeding known as a concursus.”). The Act thus provides the federal

courts with “exclusive admiralty jurisdiction to determine whether the vessel

owner is entitled to limited liability.” Id.




       destruction of any property, goods, or merchandise shipped or put on board the
       vessel, any loss, damage, or injury by collision, or any act, matter, or thing, loss,
       damage, or forfeiture, done, occasioned, or incurred, without the privity or
       knowledge of the owner.

46 U.S.C. § 30505.
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      However, as our courts have long observed, this exclusivity of admiralty

jurisdiction rubs up against the “saving to suitors” clause, which grants to the

district courts original jurisdiction over admiralty cases, “saving to suitors in all

cases all other remedies to which they are otherwise entitled.” 28 U.S.C. § 1333;

see Lewis, 531 U.S. at 448 (“Some tension exists between the saving to suitors

clause and the Limitation Act.”). This clause “embodies a presumption in favor of

jury trials and common law remedies in the forum of the claimant’s choice.”

Beiswenger, 86 F.3d at 1037. The Supreme Court has limited the tension between

the Limitation Act and the “saving to suitors” clause by carving out an exception

when a vessel owner faces only a single claimant. See Langnes v. Green, 282 U.S.

531, 542 (1931) (approving of a district court’s conclusion “that, where there was

only a single claim, there was no need for the adoption of the peculiar and

exclusive jurisdiction of the admiralty court; and that an answer setting up the

limitation of liability would give the shipowner the relief to which he was

entitled”); see also Lewis, 531 U.S. at 451 (“[T]he Courts of Appeals have

generally permitted claimants to proceed with their claims in state court where

there is only a single claimant, as in Langnes, or where the total claims do not

exceed the value of the limitation fund, as in Lake Tankers.”). In a single claimant

case, the district court may, at its discretion, order a stay of the limitation action to

allow the claim to be tried in another forum. See Lewis, 531 U.S. at 448-51.


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Before a stay may issue, however, the claimant must enter a series of stipulations

that “effectively guarantee that the vessel owner will not be exposed to competing

judgments in excess of the limitation fund.” Beiswenger, 86 F.3d at 1038. This

bifurcated procedure is far from novel. Indeed, the single claimant exception has

been applied for over a century. See Langnes, 282 U.S. at 542 (citing The

Lotta,150 F. 219, 222 (D.S.C. 1907)).

      Offshore’s arguments on appeal misunderstand the nature of this framework.

Offshore first claims that it, not Lynch, was the relevant “suitor” entitled to its

forum of choice because it initiated the limitation action. In essence, Offshore

calls for a race to the courthouse, where the first party to file assumes “suitor”

status and secures its forum of choice. The Limitation Act provides no such

weapon to vessel owners. Lynch is the only § 1333 “suitor” in this case because

she held the personal injury claim at issue. See, e.g., Lake Tankers, 354 U.S. at

153 (equating Limitation Act “claimants” with § 1333 “suitors”: “Congress not

only created the limitation procedure for the primary purpose of apportioning the

limitation fund among the claimants where that fund was inadequate to pay the

claims in full, but it reserved to such suitors their common-law remedies”

(emphases added)). Offshore, a vessel owner that sought only to use the Act to

cabin its liability in anticipation of Lynch’s lawsuit, does not qualify.




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      Moreover, a first-to-file rule would conflict with the narrow nature of the

Act, which serves to protect vessel owners’ rights to limited liability, not to give

them a choice of forum for defending claims. See Lewis, 531 U.S. at 450-51; see

also Lake Tankers 354 U.S. at 152-53 (“The Act is not one of immunity from

liability but of limitation of it and we read no other privilege for the shipowner into

its language over and above that granting him limited liability.”). We feel no urge

to expand in this way a statute our cases deem “hopelessly anachronistic.”

Hercules Carriers, Inc. v. Claimant State of Fla., Dep’t of Transp., 768 F.2d 1558,

1564 (11th Cir. 1985); Univ. of Tex. Med. Branch at Galveston v. United States,

557 F.2d 438, 441 (5th Cir. 1977). Offshore asks that we do what the Supreme

Court forbids: “transform the Act from a protective instrument to an offensive

weapon by which the shipowner could deprive suitors of their common-law

rights.” Lake Tankers, 354 U.S. at 152. We decline the invitation. Though Lynch

had not filed a “suit” before Offshore sought refuge under the Act in the district

court, the single claimant exception and the “saving to suitors” clause protect her

choice of forum.

      Finally, to the extent Offshore argues that Lynch cannot escape federal

admiralty jurisdiction because Lynch elected that forum by filing her claim in the

district court Limitation Act proceedings, we remain unpersuaded. Submitting a

claim in a limitation action initiated by a vessel owner does not amount to an


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election that precludes a claimant from seeking a state forum. See, e.g.,

Beiswenger, 86 F.3d at 1037-38 (explaining how those who file claims in a

limitation action may pursue state remedies). A party’s election to bring its case in

admiralty pursuant to Rule 9(h) can create a binding selection of federal admiralty

jurisdiction. 8 See St. Paul Fire & Marine Ins. Co. v. Lago Canyon, Inc., 561 F.3d

1181, 1187 (11th Cir. 2009). But, as the district court found, Lynch filed a claim

in the limitation action “premised on Florida common law.” Lynch made no Rule

9(h) election. When a vessel owner initiates a limitation action and an injured

party submits a claim, the single claimant exception may still be available to allow

suit in an alternate forum.

          Offshore waived its remaining arguments on appeal by failing to raise them

before the district court. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324,

1331 (11th Cir. 2004) (“[A]n issue not raised in the district court and raised for the

8
    In full, Rule 9(h) reads:

          (h) Admiralty or Maritime Claim.

          (1) How Designated. If a claim for relief is within the admiralty or maritime
          jurisdiction and also within the court’s subject-matter jurisdiction on some other
          ground, the pleading may designate the claim as an admiralty or maritime claim
          for purposes of Rules 14(c), 38(e), and 82 and the Supplemental Rules for
          Admiralty or Maritime Claims and Asset Forfeiture Actions. A claim cognizable
          only in the admiralty or maritime jurisdiction is an admiralty or maritime claim
          for those purposes, whether or not so designated.

          (2) Designation for Appeal. A case that includes an admiralty or maritime claim
          within this subdivision (h) is an admiralty case within 28 U.S.C. § 1292(a)(3).

Fed. R. Civ. P. 9.
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first time in an appeal will not be considered by this court.” (quoting Walker v.

Jones, 10 F.3d 1569, 1572 (11th Cir. 1994))). 9 Offshore contends that the single

claimant exception does not apply because Lynch’s daughter may also have

suffered injuries and, as a minor, she could avoid procedural default. But at no

time did Offshore bring this issue to the attention of the district court, which found

as an uncontested matter that Lynch was the only claimant. As a result, Offshore

has waived its objection to the court’s determination of single claimant status. See

id.

         Offshore also voices displeasure -- for the first time on appeal -- about the

sufficiency of Lynch’s stipulations, complaining both that they did not fully protect

Offshore’s rights and that they were never filed with the district court. In section II

of her motion seeking relief from the injunction, Lynch stipulated in detail, as we

have noted, that Offshore had the right to litigate the limitation of liability and the


9
    None of the recognized exceptions to our waiver rule apply here:

         First, an appellate court will consider an issue not raised in the district court if it
         involves a pure question of law, and if refusal to consider it would result in a
         miscarriage of justice. Second, the rule may be relaxed where the appellant raises
         an objection to an order which he had no opportunity to raise at the district court
         level. Third, the rule does not bar consideration by the appellate court in the first
         instance where the interest of substantial justice is at stake. Fourth, a federal
         appellate court is justified in resolving an issue not passed on below . . . where the
         proper resolution is beyond any doubt. Finally, it may be appropriate to consider
         an issue first raised on appeal if that issue presents significant questions of general
         impact or of great public concern.

Access Now, 385 F.3d at 1332 (alteration in original) (quoting Wright v. Hanna Steel Corp., 270
F.3d 1336, 1342 (11th Cir. 2001)).
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value of the vessel in the district court, and that Lynch would not seek to enforce a

state court judgment before the district court had the opportunity to adjudicate

Offshore’s effort to limit its liability. Again, this issue has been waived on appeal

because Offshore never disputed in any way the sufficiency of the stipulations or

the method by which they were entered before the district court. See id.

      AFFIRMED.




                                          17
