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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

IN ADMIRALTY 

CASE NO.: 1:20-cv-21859-CMA

In the Matter of the Complaint for Exoneration

from or Limitation of Liability by Jose Garcia,

as owner of the 2019 40’ Beneteau Motor

Yacht bearing Hull Identification No.

BENER159L819,

Petitioner.

_______________________________________/

CLAIMANT JOSEPH WHALEN’S CORRECTED1 MOTION TO DISMISS 

PETITION FOR EXONERATION AND LIMITATION 

COMES NOW, the Claimant JOSPEH WHALEN, by and through his 

undersigned counsel and moves the Court to dismiss the Petition of JOSE GARCIA for 

Exoneration from and/or Limitation of Liability [D.E. 1] and would respectfully show the 

Court as follows:

 CLAIMANT’S MOTION TO DISMISS

This limitation proceeding arises from an accident occurring on or about March 8, 

2020, when a 40’ Beneteau Motor Yacht [hereinafter “YACHT”], alleged to be owned by 

the Petitioner JOSE GARCIA, crashed into the dock located adjacent to the Casablanca 

Restaurant on the Miami River. [D.E. 1, ¶¶ 2, 6]. At the time of the incident, the 

Claimant JOSEPH WHALEN was lawfully and appropriately standing on the dock next 

to another vessel that was properly moored to it. Although WHALEN attempted to avoid 

the Petitioner’s vessel as it crashed into the dock, he was not able to do so, sustaining 

very serious injuries.

 

1 The Corrected Motion merely corrects an error in the certificate of service.

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In the Petition for Exoneration and/or Limitation, the sole factual description of 

the incident and the events leading up to it is contained in paragraph 6, which states in its 

entirety:

6. On or about March 8, 2020, the vessel was tied up to a dock at the 

Casablanca Restaurant on the Miami River in Miami-Dade County, 

Florida when someone started the vessel and engaged the engines, causing 

the vessel to crash into another vessel in the area which allegedly resulted 

in bodily injuries and property damage (hereinafter the “Incident”).

[D.E. 1, ¶ 6].

The remainder of the Petition simply contains various conclusory allegations 

without any factual support, such as “PETITIONER exercised due diligence to make and 

maintain the Vessel in all respects seaworthy” [D.E. 1, ¶ 4], “No act or omission by 

PETITIONER contributed in any way to the cause of the Incident” [D.E. 1, ¶ 11] and 

“The aforesaid injuries and damages were done, occasioned and incurred without the 

privity and knowledge of PETITIONER” [D.E. 1, ¶ 12].

As discussed in more detail in the memorandum of law below, these allegations 

are completely insufficient to satisfy the requirements of Supplemental Rule F(2), which 

require a complaint for limitation and/or exoneration to “set forth the facts on the basis of 

which the right to limit liability is asserted and all facts necessary to enable the court to 

determine the amount to which the owner’s liability shall be limited.” (emphasis added).

For example, the petition fails to give even the slightest hint as to (1) where the 

Petitioner was at the time of the incident and whether he was capable of controlling it, (2) 

the identity of the alleged operator and her relation to the Petitioner, (3) whether the 

operator was a permissive user of the vessel, (4) if the operator was not a permissive user, 

how she managed to obtain control of the vessel and operate it, (5) what steps the 

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Petitioner took in allegedly exercising reasonable care to secure and/or disable the vessel 

while he was not aboard it to prevent another person from operating it, (6) whether he 

knew that the operator was inexperienced, impaired and/or incapable of operating the 

vessel in a safe manner and (7) if the Petitioner claims to have utilized the devices on the 

vessel to secure and/or prevent its unauthorized use why they did not prevent the 

operation of the vessel (thereby rendering it unseaworthy). As set forth in the cases and

authorities below, a sufficient petition for limitation and/or exoneration is required at a 

minimum to set forth factual allegations fully addressing these issues.

As also discussed in more detail below, the allegations regarding the value of the 

vessel are equally deficient. These allegations are based solely upon an expert’s report 

attached to the Petition, which is woefully inadequate to meet Supplemental Rule F’s 

requirement that the Petitioner must set forth “all facts necessary to enable the court to 

determine the amount to which the owner’s liability shall be limited.” (emphasis added). 

These deficiencies are discussed in detail below.

MEMORANDUM OF LAW

 1. Allegations of Exoneration and Limitation

Actions seeking exoneration and/or limitation are governed by the Supplemental 

Rules for Admiralty or Maritime Claims. Rule A (2) provides that “The Federal Rules of 

Civil Procedure also apply to the foregoing proceedings except to the extent that they are 

inconsistent with these Supplemental Rules.” Supplemental Rule F, which governs the 

procedures for limitation claims, provides in pertinent part:

(2) Complaint. The complaint shall set forth the facts on the basis of 

which the right to limit liability is asserted and all facts necessary to 

enable the court to determine the amount to which the owner’s liability 

shall be limited.

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(emphasis added).

This standard for setting forth a legally sufficient claim for exoneration and/or 

limitation requires a higher degree of specificity than pleading under Rule 8,

Rule F(2) of the Supplemental Rules for Certain Admiralty and Maritime 

Claims requires a complaint seeking limitation of liability to “set forth the 

facts on the basis of which the right to limit liability is asserted ...” “[T]he 

effect of [this] provision is to require a higher degree of specificity ...” in 

pleading. 5 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, 

FEDERAL PRACTICE AND PROCEDURE § 1227 (3d ed. 2004).

In the Matter Of: Complaint of Amadeo Lopez-Castro, III, 2005 WL 8155930 (S.D.Fla. 

Nov. 15, 2005)(emphasis added) at *1. 

Accordingly, the Eleventh Circuit has held that a petition for limitation and/or 

exoneration may not rely upon mere conclusions, but instead must set forth detailed facts 

to be sufficient:

While “the narrative need not necessarily be elaborate,” it “should be full 

and complete.” Benedict, § 74, p. 8–25 and 8–26. “The faults of other 

parties and other vessels are [to be] alleged in detail as in the case of any 

collision libel or answer.” Benedict, § 74, p. 8–29; see also Suggested 

Forms 74–17 and 74–19. These requirements were not met.

In the Matter of Sunshine II, 808 F.2d 762, 764 (11th Cir. 1987)(emphasis added). As a

result, the court held that merely alleging that another party was negligent and that the 

accident and injuries “were not caused by or contributed to by the privity or knowledge 

or by any fault, neglect or want of care on the part of the [petitioner]” is not legally 

sufficient to state a claim. Id at p. 763.

Similarly, in reliance upon Sunshine II, the district court in the Matter of LopezCastro, which also arose out of a collision, held that the conclusory allegations that the 

petitioner had exercised due diligence in making the vessel seaworthy and that the 

accident was caused solely by the fault of the other party were legally insufficient:

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Petitioner’s allegations that he “exercised due diligence,” that “injuries 

allegedly resulting [from the collision] were not caused by reason of any 

fault ... [on the part of Petitioner]”, and that Petitioner “had no ‘privity or 

knowledge’ ” are all legal conclusions rather than “facts on the basis of 

which the right to limit liability is asserted.” See Rule F(2) of the 

Supplemental Rules for Certain Admiralty and Maritime Claims. 

Petitioner’s conclusory allegations do not “meet the higher degree of 

specificity” required of complaints to limit liability, nor do they provide a 

“ ‘full and complete’ ” narrative setting forth the “ ‘faults of other parties 

and other vessels ...’” M/V Sunshine, 808 F.2d at 764. Petitioner’s 

complaint therefore does not meet the pleading requirements of Rule F(2).

Matter of Lopez-Castro, 2005 WL 8155930 at *2.

The same result was reached in In the Matter of the Complaint of William J. Ryan, 

2011 WL 1375865 (S.D.Fla. April 12, 2011), which involved injuries and a death caused 

by an exploding vessel while docked. The allegations in the petition, which are even 

more detailed that the ones in this case, alleged that the petitioner 

was not at the helm, he was not operating the vessel’s systems and took no 

action to cause the explosion. He also alleges that the cause of the sudden 

explosion remains undetermined, while maintaining that the explosion 

“was not caused or contributed to by any fault, neglect want of care or 

design” on his part.

Id. at *1.

In dismissing the petition on the grounds that it failed to state a legally sufficient 

claim under Rule F, the court held:

In addition, plaintiff’s complaint is further defective for failure to set forth 

sufficient facts demonstrating plaintiff’s entitlement to the protections 

extended under the Limitation of Liability Act. The complaint states in 

conclusory fashion that the explosion and resulting damage was “done, 

occasioned and incurred without the privity or knowledge” of plaintiff; 

that he at all times exercised “due diligence” to make his vessel seaworthy 

in all respects; and that the explosion which caused the injury and damage 

“was not caused or contributed to by any fault, neglect want or care or 

design” on his part. However, he offers no facts to accompany these 

general legal conclusions.

Because he has not provided even the minimal facts necessary to suggest 

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the potential absence of fault on his part, thereby making the limitation of 

liability possible, his complaint fails to meet the requirement of 

Supplemental Rule F(2) that a vessel owner seeking limitation of liability

“set forth the facts on the basis of which the right to limit liability is 

asserted and all facts necessary to enable the court to determine the 

amount to which the owner’s liability shall be limited.” See generally M/V 

Sunshine II v. Whitaker, 808 F.2d 762 (11th Cir. 1987) (allegation that 

cruiser and motor boat collided, that operator of cruiser was free from 

fault, and that all fault was on motor boat were insufficient to meet 

requirements of supplemental rule).

Id. at *3 (emphasis added).

The Petition in this case would not even be sufficient under the less exacting

standards governing Rule 8 pleadings,2under which a complaint’s “[f]actual allegations 

must be enough to raise a right to relief above the speculative level,” “a suspicion of” or 

the “mere possibility” of entitlement to recover, but instead must “cross the line between 

possibility and plausibility of ‘entitle[ment] to relief.’” Bell Atlantic Corp. v. Twombly, 

550 U.S. 544, 556-7 (2007)(emphasis added). In defining this line, the Supreme Court in 

Twombly went on to explain, 

Where a complaint pleads facts that are “merely consistent with” a 

defendant’s liability, it “stops short of the line between possibility and 

plausibility of ‘entitlement to relief.’

550 U.S. at 557.

 

2

In Walker v. Mead, 2014 WL 2968405 (M.D.Fla. June 30, 2014), the court concluded 

that a motion to dismiss a claimant’s counter-claim filed pursuant to Supplemental Rule 

F(5) would be determined under the standards set forth by Fed.R.Civ.P. 12(b)(6) as 

interpreted in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 

556 U.S. 662 (2009). In The Matter of the Complaint of Horizon Dive Adventures, Inc., 

2018 WL 6978636 (S.D. Fla. Nov. 28, 2018), the Magistrate Judge relied upon Walker to 

reach the same result in ruling upon a motion to dismiss a claimant’s counter-claim, 

further noting that neither party had suggested a different rule. Neither of this cases 

involved the sufficiency of a Petition under the different wording of Supplemental Rule 

F(2).

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Although the court must accept all of the plaintiff's allegations of fact under Rule 

8 as true, “the Federal Rules do not require courts to credit a complaint’s conclusory

statements without reference to its factual context.” Ashcroft v. Iqbal, 556 U.S. 662, 686

(2009)(emphasis added). Accordingly, a complaint that merely provides “labels and 

conclusions,” “a formulaic recitation of the elements of a cause of action,” or “‘naked 

assertions[s]’ devoid of ‘further factual enhancement’” is not sufficient to survive a Rule 

12(b)(6) motion to dismiss. Ashcroft, 556 U.S. at 678.

This standard “demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation,” Ashcroft, 556 U.S. at 678, which is all that the Petition in this 

case alleges. 

In order to meet either of these standards, the Petitioner must allege sufficient 

facts to show that it meets the requirements for establishing both limitation and 

exoneration. As explained by the Eleventh Circuit in American Dredging Co. v. 

Lambert, 81 F.3d 127, 129 (11th Cir. 1996)(emphasis added),

A shipowner is entitled to exoneration from all liability for a maritime 

collision only when it demonstrates that it is free from any contributory 

fault. Tittle v. Aldacosta, 544 F.2d 752, 755 (5th Cir.1977). The 

determination of whether a shipowner is entitled to limit liability, 

however, involves a two-step analysis which this Court explained in 

Hercules Carriers, Inc. v. Claimant State of Florida, 768 F.2d 1558 (11th 

Cir.1985):

First, the court must determine what acts of negligence or conditions of 

unseaworthiness caused the accident. Second, the court must determine 

whether the shipowner had knowledge or privity of those same acts of 

negligence or conditions of unseaworthiness.

Therefore, in order to show that he has a plausible entitlement to relief, the 

Petitioner must allege sufficient facts to show that he was free from fault and that he did 

not have privity or knowledge of the negligence causing the accident. In order to 

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establish a lack of privity or knowledge, 

“This burden is not met by simply proving a lack of actual knowledge, for 

privity and knowledge is established where the means of obtaining 

knowledge exist, or where reasonable inspection would have led to the 

requisite knowledge.” Id. (citation omitted). Thus, while knowledge may 

stem from an owner’s personal participation in the negligence, see Petition 

of M/V Sunshine, II, 808 F.2d 762, 763 (11th Cir.1987), it also may exist 

where the owner “could have and should have obtained the information by 

reasonable inquiry or inspection,” Hercules, 768 F.2d at 1577.

Lambert, 81 F.3d at 130.

Without at a minimum setting forth sufficient factual allegations to fully and 

adequately answer the seven questions set forth in pages two (2) through (3) above, by 

identifying where he was at the time of the incident and why he could not control his 

vessel, the identity of the operator of the vessel at the time of the incident, how she came 

to be in control of the vessel, the specific steps which the Petitioner allegedly took in 

exercising reasonable care to secure the vessel from unauthorized users and if activated 

whether the security systems of the vessel operated properly (if not, rendering it 

unseaworthy), the Petition cannot adequately state a claim for relief under Supplemental 

Rule F(2).

 2. Allegations of Vessel’s Value

The allegations in the Petition regarding valuation are based solely upon an 

expert’s report attached to it [D.E. 1-1], which is woefully inadequate to meet 

Supplemental Rule F’s requirement that the Petitioner must set forth “all facts necessary 

to enable the court to determine the amount to which the owner’s liability shall be 

limited.” (emphasis added). 

In this regard, the expert’s affidavit merely indicates that the vessel was a “42 foot 

long BENETEAU Grand Tourism 40, fiberglass hulled, twin diesel engine driven motor 

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yacht built in 2018 but a 2019 model.” [D.E. 1-1, ¶ 5]. Although the type and 

specifications of the engines and the specific equipment, especially upgrades and add ons, 

carried on a high end vessel of this nature play a significant role in its value, there is no 

description whatsoever in the report concerning these matters. 

Similarly, the affidavit’s description of the methodology used by the expert 

merely indicates “I conducted research on the Internet and using NADA Appraisl [sic] 

Guides to try and establish values of similar motor yachts in various geographic areas and 

came to a value of CHAFLAND CUPPERFIELD” [sic] based on this review.” (emphasis 

added). No explanation was given as to what Internet research was conducted or how it 

was utilized to reach the expert’s opinion on value. 

For example, one cannot determine whether the expert was looking at advertised 

prices for the sale of other vessels and if so, why he did not limit his search to the 

identical make and model, but instead decided to look at “similar vessels.” There is also 

no indication of what constituted a “similar vessel,” how many similar vessels he found, 

their sale prices and the geographic area where they were located. Even a cursory search 

on the Internet shows that there are often tremendous variations in the sale price for 

identical vessels depending upon their geographic location. Neither is there any 

explanation as to what “CHAFLAND CUPPERFIELD” means or its significance to the 

expert’s opinion.

Even though the vessel was a 2019 model, there is no indication of when it was 

purchased or its purchase price, which would obviously be highly significant factors in 

determining its present valuation. Likewise, although it appears as if the expert 

discounted the value of the vessel based upon the damage to its “hull, anchor and rails” 

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from the subject accident, there is no description of the extent and severity of the damage 

or how much he discounted the vessel’s value based upon it.

Although this motion is not one seeking to exclude Petitioner’s expert from 

testifying at trial, this Court’s opinion in Barnext Offshore, Ltd. v. Ferretti Group, USA, 

Inc., 2012 WL 13012778 (S.D.Fla. May 24, 2012) is instructive in showing the 

inadequacies of the affidavit of Petitioner’s expert to adequately establish the value of the 

subject YACHT at the present time. This Court started with the proposition that neither 

Daubert nor the Federal Rules of Evidence authorize “opinion evidence that is connected 

to existing data only by the ipse dixit of the expert.” Id. at * 2. It further notes that 

although the parties’ competing experts were both qualified by experience to render 

opinions regarding the valuation of the fire damaged yacht, that such experience by itself 

was not sufficient to render a reliable opinion as to valuation without utilizing the 

appropriate methodology. Id. at * 7-8.

In analyzing the methodology used by the experts, this Court pointed out that 

some of the factors which both expert’s relied upon were (1) the cost of the vessel when 

new, (2) the amount of depreciation between purchase and the fire and the basis for 

determining such depreciation and (3) the costs of repair necessitated by the subject 

casualty—none of which are even mentioned or discussed in Petitioner’s affidavit. Both 

experts also identified and discussed the sales prices of a sufficient number of 

comparable yachts, explaining how they used them to reach an opinion on valuation. Id. 

at * 5 and * 7. Again, all we have here is the expert’s statement that he conducted some 

undefined “research on the Internet and using NADA Appraisl [sic] Guides,” without any 

explanation of the results of his search or the methodology utilized to convert it into his 

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ultimate opinion so that all we are left with is his ipse dixit.

 3. Conclusion

For the foregoing reasons it is clear that the Petition for Exoneration and 

Limitation of Liability fails to set forth a legally recognized claim under either 

Supplemental Rule F(2) or Fed.R.Civ.P. 8 as to either exoneration, limitation or the 

valuation of the vessel and accordingly, it must be dismissed.

DATED this 8th day of June 2020.

Respectfully submitted,

By: /s/ Robert D Peltz

(FL Bar No.: 220418)

The Peltz Law Firm

P.O. Box. 56-6556

Miami, Fla. 33256

E-mail: RPeltzLaw@Gmail.com

Telephone: 786-732-7219

and

Sidney A. Goldberg, Esq.

(FBN 218774)

Goldberg & Hirsh, P.A.

3020 Sun Trust International Center

One S.E. Third Ave.

Miami, Fla. 33131

Email: Sgoldberg@Goldberghirshpa.com

 Attorneys for Claimant Joseph Whalen 

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on June 8, 2020 this document was electronically filed 

with the Clerk of the Court using CM/ECF and served by email transmission on Craig P. 

Liszt, Horr, Novak & Skipp, P.A., Two Datran Center, Suite 1700, 9130 South Dadeland 

Blvd., Miami, Fla., at cliszt@admiral-la.com. 

 By:/s/ Robert D Peltz 

(FL Bar No.: 220418)

The Peltz Law Firm

P.O. Box. 56-0003

Miami, Fla. 33256

E-mail: RPeltzLaw@Gmail.com

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