FOURTH DIVISION

DILLARD, P. J.,

MERCIER and MARKLE, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

https://www.gaappeals.us/rules

March 9, 2022

In the Court of Appeals of Georgia

A21A1313. WILLIAMS, III et al. v. GEORGIA PORTS

AUTHORITY et al.

MERCIER, Judge.

Matthew Williams and Latoya Williams filed a complaint in the State Court of

Chatham County against the Georgia Ports Authority (“Ports Authority”) and Joshua

Miller, alleging that Miller acted negligently while in the course and scope of his

employment with the Ports Authority, causing injury to Matthew. Miller filed a

motion to dismiss, claiming that he was protected by sovereign immunity. The trial

court agreed and granted Miller’s motion.

1

In their sole enumerated error, the

Williamses argue that the trial court erred by dismissing their federal maritime claim

1 The trial court also signed a certificate for immediate review, and Matthew

subsequently filed an application for interlocutory appeal, which we granted. See

Case No. A21I0152. 
against Miller in his individual capacity. Finding that Miller is not entitled to

Eleventh Amendment immunity for the Williams’s maritime claim

2

, we reverse.

“The appellate court reviews de novo the trial court’s ruling on the

[defendant’s] motion to dismiss, accepting as true all well-pled material allegations

in the complaint and resolving any doubts in favor of the plaintiff.” Williams v.

DeKalb County, 308 Ga. 265, 270 (2) (840 SE2d 423) (2020) (citation and

punctuation omitted). Whether a party is protected by sovereign immunity is a

threshold issue. See City of Tybee Island v. Harrod, 337 Ga. App. 523, 524 (788

SE2d 122) (2016). 

As alleged, on August 16, 2018, Matthew was working as a longshoreperson

for the International Longshore Association onboard the ocean-going vessel Zim

Rotterdam, while it was berthed in Garden City, Georgia. While Matthew was

working on a “lashing gang,” Miller, a Ports Authority crane operator, tried to lift the

crane’s spreader bar from a nearby 40 foot container. Instead, Miller hoisted the

spreader bar along with the 40 foot container and the two containers attached below.

One or more of the lashing rods on the containers broke free and struck Matthew in

2 The Williamses concede that their claimagainst Miller under the Georgia Tort

Claims Act is barred by sovereign immunity. See OCGA § 50-21-25 (a). 

2
the head, causing serious and permanent injuries. The Williamses alleged that Miller

acted negligently, inter alia, by failing to ensure that the spreader bar was

disconnected fromthe container and by lifting the spreader bar “in an extremely rapid

and abrupt manner,” and that the Ports Authority was vicariously liable.3

Miller filed a motion to dismiss asserting that he was entitled to sovereign

immunity. In their response, the Williamses argued that Eleventh Amendment

sovereign immunity does not extend to State employees being sued in their personal

capacity. The trial court granted the motion. The Williamses contend that the trial

court erred by dismissing Miller because he does not have Eleventh Amendment

immunity protection for their claims against him personally under federal maritime

law. 

As an initial matter, we must examine our jurisdiction over a maritime

proceeding. See generally Dept. of Transp. v. Douglas Asphalt, 297 Ga. App. 511,

512 (677 SE2d 728) (2009) (“It is the duty of this Court on its own motion to inquire

into its jurisdiction.”) (citation and punctuation omitted). 

The United States Constitution vests the judicial [p]ower of the United

States in the federal courts and extends that power to all [c]ases of

3

 Latoya alleged a derivative loss of consortium claim. 

3
admiralty and maritime [j]urisdiction. Federal admiralty jurisdiction,

however, has never been exclusive. The Judiciary Act of 1789 provided

that the federal district courts had exclusive jurisdiction “of all civil

causes of admiralty and maritime jurisdiction saving to suitors, in all

cases, the right of a common law remedy, where the common law is

competent to give it.” The emphasized language is referred to as the

“savings to suitors” clause and appears today in modified form at 28

U.S.C. § 1333(1): “saving to suitors in all cases all other remedies to

which they are otherwise entitled.”

Phillips v. Sea Tow/Sea Spill of Savannah, 276 Ga. 352, 353-354 (578 SE2d 846)

(2003) (footnotes and punctuation omitted, emphasis in original). As such, Georgia

courts have concurrent jurisdiction over personal injury maritime claims. See Lewis

v. Lewis & Clark Marine, 531 U. S. 438, 445 (II) (A) (121 SCt 993, 148 LE2d 931)

(2001). 

As alleged by the Williamses, Miller, a Ports Authority employee, was acting

in the course and scope of his employment when Matthew was injured. As an arm of

the State, the Ports Authority is entitled to immunity under the Eleventh Amendment,

and “the doctrine of sovereign immunity bars a lawsuit in state court against the Ports

Authority to recover damagesfor the tort of its employee, except to the extent that the

State has consented to the suit.” Georgia Ports Auth. v. Lawyer, 304 Ga. 667, 682 (5)

4
(821SE2d 22) (2018). However, “the Eleventh Amendment does not bar actions for

damages against state officials in their individual capacities, which seek recovery

from the officials’ personal funds.” Georgia Ports Auth. v. Andre Rickmers

Schiffsbeteiligungsges mbH & Co. KG, 262 Ga. App. 591, 595 (4) (585 SE2d 883)

(2003), overruled on other grounds by Hines v. Georgia Ports Auth., 278 Ga. 631

(604 SE2d 189) (2004)4

; see Georgia Ports Auth. v. Andre Rickmers

Schiffsbeteiligungsges mbH &Co. KG, 272 Ga. App. 638 (612 SE2d 927) (2005);see

also Alden v. Maine, 527 U. S. 706, 757 (III) (119 SCt 2240, 114 LE2d 636) (1999)

(“Even a suit for money damages may be prosecuted against a state officer in his

individual capacity for unconstitutional or wrongful conduct fairly attributable to the

officer himself, so long as the relief is sought not from the state treasury but from the

officer personally.”). 

In order to determine if “an official is being sued in his official capacity or in

his individual capacity, courts look at the complaint and the course of proceedings.”

Andre Rickmers, supra 262 Ga. App. at 595 (4). Here, as in Andre Rickmers, the

caption of the complaint did not specify whether Miller was being sued individually

or officially. See id. at 596 (4). There was no allegation, however, that Miller was an

4 Hines, supra, was subsequently overruled by Lawyer, supra.

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official of the Ports Authority who would serve as an appropriate Ports Authority

representative in the underlying litigation. See id. Moreover, if the Williamses had

intended to recover only from the Ports Authority, and not from Miller individually,

they “need not have named both entities as defendants.” Id. “Finally, nothing in the

complaint or course of proceedings indicates that [the Williamses] did not intend to

sue [Miller] individually.” Id. (emphasis in original).

Therefore, we conclude that Miller was sued in his individual capacity and is

not entitled to Eleventh Amendment immunity. See Andre Rickmers, supra 262 Ga.

App. at 596 (4). As such, the trial court erred by dismissing the Williams’s maritime

claims against Miller.5

 Accordingly, we reverse. 

Judgment reversed. Dillard, P. J., and Markle, J., concur.

5 Miller argues for the first time in his appellee brief that federal law provides

him with qualified immunity from the Williams’s maritime claims. However, as

Miller failed to raise this argument in his motion to dismiss, and the trial court did not

rule upon the argument, we will not address the issue for the first time on appeal. See

Nusz v. Paulding County, Georgia, 361 Ga. App. 131, 133 (1) (863 SE2d 384) (2021)

(“This [C]ourt is for the correction of errors, and where the trial court has not ruled

on an issue, we will not address it.”) (citation and punctuation omitted). 

6