FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT

AUGUST 30, 2000 THOMAS K. KAHN CLERK [PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 98-5704

________________________ D. C. Docket No. 97-10047-CV-JCP BLAINE SHULTZ, Personal Representative for the Estate of Patricia Shultz, Plaintiff-Appellant,

versus FLORIDA KEYS DIVE CENTER, INC., a Florida corporation, GREGORY HESSINGER, et al, Defendants-Appellees.

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

_________________________ (August 30, 2000) Before TJOFLAT, RONEY and FAY, Circuit Judges.
PER CURIAM: Plaintiff Blaine Shultz sued Florida Keys Dive Center, Inc. (“Dive Center”) and its employees Gregory Hessinger and John Br ady and owners Pamela Timmerman and2 Thomas Timmerman for the wrongful death of his wife, Patricia Shultz, who died of an apparent drowning while scuba diving on a trip conducted by the Dive Center. The district court granted summary judgment for defendants, rely ing on a release of liability signed by Patricia Shultz, which the court determined to be valid under Florida law. We affirm the judgment, conc luding that the district court correctly held that the liability release is not invalidated by an admiraltystatute, 46 U.S.C. app. § 183c(a) (1994). Further, we conclude that it is not invalidated by the admiralty common law. Briefly, the facts are as fo llows: The day before her di ve, Patricia Shultz signed a document releasing defendants from liability for all claims, even for those arising out of negligence or gross negligence. Th e next day, the Dive Center’s boat, the Goody III, transported Patricia and Blaine Shultz and their 13-year-old daughter, all certified divers, to the location of their di ve. Not long after entering the water, the Shultzes surfaced, but found themselves too far away to swim back to the Goody III. The Goody III did not pick them up immediately, because it was waiting for other divers still in the water to reboard. Th e divemaster from the Goody III swam out to help the Shultzes, but Patricia Shultz became unconscious before she was picked up by a boat, and she died. Plaintiff filed a lawsuit in federal district court, invoking the court’s diversity3 jurisdiction. He claimed that defendants had been negligent in, among other things, not warning the Shultzes of the strength of the current, not sending the Goody III immediately to retrieve the Shultzes fro m the water, not outfitting the Goody III with a small boat that could be used to pick up divers, not bringi ng rescue devices to Patricia Shultz, and not being attentive to Pa tricia Shultz’s conditi on in the water. The court granted summary judgment for de fendants based upon the liability release, which it determined to be valid under Florida law. Unless the liability release signed by Patric ia Shultz is invalidated under either 46 U.S.C. app. § 183c(a) or admiralty common law, the release is unquestionably valid and bars plaintiff’s claim. 46 U.S.C. app. § 183c(a) provides: It shall be unlawful for the manage r, agent, master, or owner of any vessel transporting passengers between ports of the United States or between any such port and a foreign port to insert in any rule, regulation, contract, or agreement any provision or limitation (1) purporting, in the event of loss of life or bodily injuryarising from the negligence or fault of such owner or his servants, to re lieve such owner, master, or agent from liability, or from liability beyond any stipulated amount, for such loss or injury, or (2) purporting in such event to lessen, weaken, or avoid the right of any claimant to a trial by court of competent jurisdiction on the question of liability for such loss or injury, or the measure of damages therefor. All such provisi ons or limitations contained in any such rule, regulation, contract, or ag reement are declared to be against public policy and shall be nu ll and void and of no effect. In affirming the district court’s deci sion that § 183c(a) does not invalidate a scuba diving release otherwis e valid under state law, we fo llow the consistent lead of4 the few cases addressing the release issue unde r facts similar to this one. There are no federal appellate cases. In addition to this case, every district court and state court presented with the issue, however, has uphe ld such releases in recreational scuba diving cases such as this one, based on eith er the lack of application of § 183c(a) or based on a lack of admiralty jurisdiction. The release was upheld as not meeting th e requirements of § 183c(a) in the case at bar and in Cutchin v. Habitat Curacao , 1999 AMC 1377, 1380-81 (S.D. Fla. 1999) and in Thompson v. ITT Sheraton Corp. , No. 97-10080, at 4-7 (S.D. Fla. Feb. 2, 1999). The one case holding that § 183c(a) did apply to invalidate a scuba diving liability release involved a scuba diver w ho was struck by the propeller of another boat. See Courtney v. Pacific Adventures, Inc. , 5 F. Supp.2d 874, 878-80 (D. Haw. 1998). The application of § 183c(a) to the release in Pacific Adventures has been criticized. See Jeffrey T. Woodruff, Please Release Me–The Erroneous Application of 46 U.S.C. App. § 183c to Scuba Diving Releases in Courtney v. Pacific Adventures, Inc., 23 Tul. Mar. L.J. 473 (1999). Even in Pacific Adventures , however, the court apparently would have upheld the release in this case based on a lack of admiralty jurisdiction. The court reasoned that th e allegations “involve[d] the operation of a vessel,” 5 F. Supp.2d at 878, but then opined that if plaintiff’s injuries “were related solely to scuba diving and had no relationship to the ope ration or maintenance of a5 vessel, then there would be no admiralty jurisdiction.” 5 F. Supp.2d at 880 n.5. The district court in the case at bar relied on two other cas es, which it cited as Keith v. Knopick, CL 95-3845 AF, Palm Beach County, Florida (March 18, 1997) and Mudry v. Captain Nemo , Case No. 94-0265(1), 2 nd Cir. Hawaii (February 13, 1996), stating that they determined § 183c(a) or a similar state law statute to be inapplicable to a scuba diving liability release. T hose two cases, however, are unpublished, and have not been made available to us. These cases are fact-s pecific. We have been cite d to no case with facts similar to this one--where the injury, an apparent drowning, resu lted strictly from a recreational scuba diving accident–that held a release such as the one here to be invalid under § 183c(a). The Goody III servedonly as a dive boat: it departed the port of Tavernier in the Florida Keys, brought the divers to the location of the dive, and after the dive returned them to Tave rnier. It was not a “vessel transporting passengers between ports of the United States or between any such port and a foreign port.” 46 U.S.C. app. § 183c(a). The legislative history supports the interp retation by these cases that the statute does not cover the liability release signed by Patricia Shultz. Congress enacted § 183c(a) in 1936 to “put a stop to” practices like “providing on the reverse side of steamship tickets that in the event of da mage or injury cause d by the negligence or6 fault of the owner or his servants, the lia bility of the owner shall be limited.” H.R. Rep. No. 74-2517, at 6-7 (1936); S. Rep. No. 74-2061, at 6-7 (1936). That “practice” that Congress intended to outlaw was much different than the practice here–requiring a signed liability release to participate in the recreational and inherently risky activity of scuba diving. The other case upholding a release under si milar circumstances relied on a lack of admiralty jurisdiction. Although state c ourts have jurisdiction over admiralty cases, Borden v. Phillips , 752 So.2d 69, 72-73 (Fla. Dist. Ct. App. 2000) concluded that admiralty jurisdiction did not exist and upheld a release under Florida law. InBorden , the diver surfaced and waived his hand in di stress, but the captain misinterpreted the signal as an “o.k.” signal and detached the emergency “tag line”--a floating rope enabling divers to pull themselves to the boat. See 752 So.2d at 71. The court held that admiralty jurisdiction was lacking ove r the wrongful death claim, because the activity at issue was scuba diving, not boating: [T]he decedent intentionally departedthe [dive boat] to dive. This activity, scuba diving, wa s not dependent on his passage in the [dive boat]. Further, decedent ceased bei ng a passenger when he entered the water. That the crew was allegedl y negligent when it failed to respond to decedent’s signal did not involve the operation or maintenance of the [dive boat], but was related solelyto the activity of scuba diving. 752 So.2d at 72-73. Because the court determ ined admiralty jurisdiction not to exist, it did not reach the issue whether admiralty law invalidated the liability release.7 The district court in this case held th ere was admiralty jurisdiction because “by transporting individual scuba divers from shor e to dive off of a vessel, the Defendants were performing an activity traditionally performed by vessels.” We see no reason to disturb this decision. We, of course, cannot assume without deciding a jurisdictional issue to decide a case that w ould not otherwise be before the court. See Steel Co. v. Citizens for a Better Env’t , 523 U.S. 83, 93-102 (1998). The question here, however, is not whether subject matte r jurisdiction is satisfied, for this case is within the diversity jurisdiction of the fe deral court, but whether to apply federal admiralty law or state law to a cas e within the court’s jurisdiction. We note, however, that the jurisdictional issue is not free from doubt. In addition to Borden, the Florida state court case, two federal district courts have held there to be no admiralty jurisdiction in recreational scuba diving cases. In In re
Kanoa , 872 F. Supp. 740 (D. Haw. 1994), a scuba diver died when his lungs exploded from surfacing too rapidly without breathi ng. Although the dive began from a dive boat, the court held that admiralty jurisdiction did not exist, reasoning that the “relevant activity” was scuba diving, not boa t transportation. 872 F. Supp. at 745-46.
In Tancredi v. Dive Masai Charters , 823 F. Supp. 778 (D. Ha w. 1993), a scuba diver drowned during a dive from a dive boat. Th e court held that admiralty jurisdiction was lacking over plaintiff’s tort claim, b ecause the boat had “little, if any, impact on8 the events that transpired dur ing Tancredi’s dive that led to his death.” Instead, the death was attributable to “negligent dive planning and supervision and the actions of the dive master in taking Tancredi to unsafe levels.” 823 F. Supp. at 784. But see McClenahan v. Paradise Cruises, Ltd. , 888 F. Supp. 120, 121-23 (D. Haw. 1995) (holding that admiralty jurisdiction existed in recreational scuba-type diving case, and concluding that Kanoa and Tancrediwere overruled at least in part by Grubart, Inc. v. Great Lakes Dredge & Dock Co. , 513 U.S. 527, 534 (1995), a Supreme Court case not involving recreational scuba diving). Although admiralty jurisdiction has been recognized in other recreational scuba diving cases, many of those cases are distinguishable by the role played by the boat in causing the injuries. Admiralty jurisd iction has been held to exist where scuba divers were struck by boats. See Neely v. Club Med Management Servs. , Inc. , 63 F.3d 166, 179-80 (3 rd Cir. 1995) (en banc); Courtney v. Pacific Adventures, Inc. , 5 F. Supp.2d 874, 877-78 (D. Haw. 1998). Admiralty jurisdiction also existed where the dive boat crew failed to render medical assistance to a diver after reboarding the dive boat. See Sinclair v. Soniform , Inc. , 935 F.2d 599, 600-02 (3 rd Cir. 1991). As the court did in Cutchin , 1999 AMC at 1379-81, admiralty jurisdiction was held to exist in a case involving recreational scuba diving, despite the absence of direct involvement of a boat. See Kuntz v. Windjammer “Barefoot” Cruises, Ltd. , 5739 F. Supp. 1277, 1280 (W.D. Pa. 1983). Admiralty jurisdiction also existed where the dive boat crew failed to render medical assistance to a diver after reboarding the dive boat. See Sinclair v. Soniform , Inc. , 935 F.2d 599, 600-02 (3 rd Cir. 1991). Based on admiralty jurisdiction of the tort claim, plaintiff makes the additional argument on appeal that the liability rel ease is invalid under admiralty common law. The district court did not address this argument, in which plaintiff relies on our statement in Kornberg v. Carnival Cruise Lines, Inc. , 741 F.2d 1332, 1335 (11 thCir. 1984), that “[a] sea carrier’s ability to di sclaim its responsibilitie s is not unlimited.” The vessels in Kornberg and in the other cases cited by plaintiff, however, were common carriers–e.g., ferries, oceanliners, or cruise ships. See Kornberg , 741 F.2d at 1333; Liverpool and Great W. Steam Co. v. Phenix Ins. Co. , 129 U.S. 397, 437 (1889); The Arabic , 50 F.2d 96, 97-99 (2d Cir. 1931); The Oregon , 133 F. 609, 610 (9 thCir. 1904); Lawlor v. Incres Nassau Steamship Line, Inc. , 161 F. Supp. 764, 765 (D. Mass. 1958); Beane v. Royal Caribbe an Cruise Lines, Inc. , 1992 WL 125338, at *1 (E.D. La. 1992). Plaintiff does not contend that the Dive Center was a common carrier. The Dive Center’s business was scuba diving, not general transportation. No court, as far as we have been inform ed, has ever relied upon federal common law to invalidate a liability release for scuba divi ng, even where the scuba diving involved the use of a dive boat. The federa l common law’s limitation on common carrier10 liability releases does not extend to the liability release signed by Patricia Shultz. Since no principle of fede ral law governs the validity of the liability release signed by Patricia Shultz, state law applies, unless the application of state law would “frustrate national interests in having uniformity in admiralty law.” Coastal Fuels Mktg., Inc. v. Florida Express Shipping Co. , 207 F.3d 1247, 1251 (11 thCir. 2000). Plaintiff does not argue that state law is precluded for that reas on. Therefore, the district court correctly applied Florida law, under which there is no dispute that the liability release signed by Patr icia Shultz is valid and bars plaintiff’s claim. See, e.g., Theis v. J7J Racing Promotions , 571 So.2d 92, 93-94 (Fla. Dist. Ct. App. 1990). There was no error in granting summary judgment based upon the release of liability signed by Patricia Shultz.
AFFIRMED.