IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

IN ADMIRALTY

FEDERAL INSURANCE COMPANY, 

an Indiana Corporation, as subrogee of 

Skipperline Industries, Inc., 

Plaintiff/ Counter-Defendant, 

vs. CASE NO. 5:10-cv-92/RS-EMT 

ALL ABOARD CRUISE & TOW, INC., 

d/b/a TOWBOAT U.S. CARRABELLE, 

a Florida Corporation,

Defendant/Counter-Plaintiff. 

_________________________________________ 

ORDER

Before me are Plaintiff’s Motion to Dismiss Defendant’s Counterclaim (Doc. 34)

and Defendant’s Memorandum in Opposition (Doc. 37).

Standard of Review

To survive a motion to dismiss, a pleading must contain sufficient facts, which 

accepted as true, state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 129 

S. Ct. 1937, 1949 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569, 127 S. Ct. 

1955, 1974 (2007). Granting a motion to dismiss is appropriate if it is clear that no relief 

could be granted under any set of facts that could be proven consistent with the 

allegations of the complaint. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 
2229, 2232 (1984). In making this determination, the court must accept all factual 

allegations in the complaint as true and in the light most favorable to Plaintiff. 

Christopher v. Harbury, 536 U.S. 403, 406, 122 S. Ct. 2179, 2182 (2003).

Background

On October 14, 2007, the “Ginn Sur Mer” began taking on water in the Gulf of 

Mexico. The vessel was taken in tow by a fishing vessel towards East Pass, Florida with 

pumps operating that had been delivered by the Coast Guard. Approximately one mile 

from East Pass, Defendant’s towboat arrived and took over towing the “Ginn Sur Mer.” 

The vessel was brought to shore, docked, and subsequently sank in the early morning 

hours of October 15, 2007 causing significant damage. 

The “Ginn Sur Mer” was designed and built by Skipperliner Industries, Inc., and 

operated by Naples 306, LLC, a wholly owned subsidiary of Skipperliner. After some

initial uncertainty as to the relationship between Plaintiff and Naples 306, the First 

Amended Complaint (Doc. 26, attach. 1) established that Plaintiff, having paid a claim, is

the subrogee of both Skipperliner and Naples 306. In addition, Defendant’s Answer to 

the First Amended Complaint & Counterclaim (Doc. 30) cleared up any uncertainty 

regarding the nature of its claim by establishing that a counterclaim (and not a third party 

complaint as originally filed in Doc. 6), had been brought against Plaintiff for the actions 

undertaken by its insured Skipperliner and Naples 306. The counterclaim seeks 

“contribution or indemnity” from Plaintiff as a result of its relationship to Skipperliner 

and Naples 306. 
Analysis

A. Indemnification 

Indemnity is a legal principle where one tortfeasor may shift its entire loss onto 

another tortfeasor provided that the latter should appropriately answer for the entirety of 

the loss. Columbus-McKinnon Corp. v. Ocean Products Research, Inc., 792 F. Supp. 

786, 788 (M.D. Fla. 1992). Defendant has not alleged any set of facts, such as the 

existence of a contract, which would make indemnification a plausible theory of 

recovery.

1

 As a tow boat operator, the Defendant’s relationship to the vessel operator and 

manufacturer is not one that would automatically give rise to a relationship where one 

party would answer for the other’s actions. Defendant has not provided any basis for 

establishing such a relationship. 

B. Contribution 

Plaintiff has raised as an affirmative defense the negligence of Skipperliner in 

designing the vessel and Naples 306 in operating the vessel. In essence, this is a defense 

of comparative fault that dovetails with Defendant’s contribution counterclaim. 

Columbus McKinnon Corp. at 789 (noting that contribution in admiralty is based on 

comparative fault principles). As this is a bench trial, it may be clearer for Defendant to 

pursue this defense rather than muddy the waters with a contribution based counterclaim. 

 

1

Indemnity in American maritime courts may take any of three forms: it may be pursuant to an express 

contractual obligation, or pursuant to a contractual obligation implied from the relationship of the parties, 

or it may take the form of restitution, to prevent one party from being unjustly enriched at the expense of 

another. These concepts have developed in the courts only during the last half century. Each will be 

considered in turn. 2-I Benedict on Admiralty § 9
In any event, Defendant has raised sufficient facts to make it plausible that the sinking of 

the “Ginn Sur Mer” resulted from a series of negligent acts by one or more of the parties. 

Conclusion

Plaintiff’s Motion to Dismiss (Doc. 34) is GRANTED in part, and DENIED in 

part. 

IT IS ORDERED: 

1. Defendant’s claim for indemnity is dismissed with prejudice. 

2. Defendant’s claim for contribution remains. 

ORDERED on December 1, 2010

/S/ Richard Smoak 

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE