IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS AND ST. JOHN

CYNTHIA I. SHUSTER and MICHAEL J. )
SHUSTER, )
) CASE NO. ST-18-CV-009
Plaintiffs, )
)
v. ) ACTION FOR DAMAGES
)
BARRACUDA CHARTERS, LLC and )
CAPTAIN KENNETH KLEIN, ) JURY TRIAL DEMANDED
)
Defendants. ) Cite as 

)
MEMORANDUM DECISION

41. THIS MATTER is before the Court upon “Plaintiffs’ Motion In Limine To Exclude
Testimony” filed on November 5, 2019. Defendant Barracuda Charters, LLC (hereinafter
“Barracuda Charters or Defendant’) filed their “Opposition to Plaintiffs’ Motion in Limine” on
November 18, 2019. Plaintiffs filed a reply on November 21, 2019. Plaintiffs’ (hereinafter “the
Shusters or Plaintiffs”) motion seeks to exclude testimony pertaining to three (3) issues: 1.)
Defendant’s expert Thomas Danti’s reference to a U.S. Coast Guard report’s respective findings
of the incident, 2.) Defendant Barracuda Charters’ reference to the “Obama Era Amendment”
codified at title 

(b)(1), and 3.) Defendant’s request for limitation of liability, if
Defendant is deemed negligent.
I. LEGAL ANALYSIS

2. Defendant has no objection to the exclusion of its expert’s opinion in reference to the
findings of the U.S. Coast Guard report (regarding Captain Kenneth Klein), therefore that issue
has been resolved and Barracuda Charters is hereby precluded from referencing, producing, or

eliciting any evidence or testimony of that nature.
Cynthia I. Shuster et al. v. Barracuda Charters, LLC et al. Cite as 

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Memorandum Decision

A. MARITIME OR ADMIRALTY LAW ANALYSIS
4/3. In order to rule on the second issue in the pending motion, this Court must address certain
procedural and substantive issues, specifically: (1.) whether the case sounds in maritime or
admiralty law, (2.) whether this Court has jurisdiction to adjudicate a maritime cause of action,
and (3.) whether admiralty law or Virgin Islands law governs this case.

i. Whether the Case Sounds in Maritime or Admiralty Law

44. The Supreme Court of the United States in Grubart v. Great Lakes Dredge & Dock Co,

 (1995) articulated a 2-prong test to determine whether a case sounds in
admiralty or maritime law. The first prong, the locality test, requires that the incident occurred on
navigable waters or be caused on land by a vessel that traverses navigable waters.' This test is
easily met here as Plaintiffs’ injuries occurred while aboard Defendant’s vessel, the A/V Cuda,
and on the navigable waters off the island of St. Thomas.’ The second prong, the maritime
connection test, is further divided into two sub-parts: first, whether the incident has a potentially
disruptive impact on maritime commerce, and second, whether the character of the activity, giving
rise to the incident, shows a substantial relationship to traditional maritime activity.?

45. The first sub-part of the maritime connection test requires a more in-depth inquiry. In
finding that courts have “often liberally construed” * potentially disruptive impact to “encompass

cases involving swimmers injured by boats, recreational vessels that burned out of control,’*

' Grubart v. Great Lakes Dredge & Dock Co, 

 (1995); Gibbs v. Carnival Cruise Lines, 

, 131 (3d. Cir. 2002),

® See generally Complaint at paras. 26-41.

* Grubart, 

, See also Sisson v. Ruby, 

 (1990).

4 Leach v. Cruise Ship Excursions, Inc.,2019 VI SUPER L1OU, at *19 (V.I. Super. Ct. 2019).

* See Donnelly v. Slingshot Sports LLC, 

 (D. Del. 2009). See also Sisson, 

(this case involves a fire that began on a noncommercial vehicle but such a fire, with certainty, “has a potentially
disruptive impact on maritime commerce”), Roane v. Greenwich Swim Comm., 

 (S.D.N.Y. 2004)
{a situation where passengers on a boat in the Long Island Sound gave attention to saving a swimmer in distress...
this action may well distract them from the “hazard posed by other approaching boats”).

2
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people injured while undertaking recreational activities in the waters,° collision between pleasure
boats,’ as well as injured passengers aboard ocean-going passenger vessels and cruise lines,® this
Court rules that the potentially disruptive sub-part is ultimately satisfied. Plaintiff clearly suffered
an injury while aboard Defendant’s vessel when the M/V Cuda apparently hit a rough wave that
caused Plaintiff Cynthia Shuster to rise into the air and land on her hips causing her injury.’ The
Court finds that tending to such an injury may cause: 1.) delays to other boats in the area, 2.) the
vessel to alter its course, 3.) crew members to be distracted from their other duties, and 4.) other
vessels to divert from the area in order to get the necessary medical attention and personnel to Mrs.
Shuster.'° These factors taken together could have a potentially disruptive impact on maritime
commerce,

16. The second sub-part, whether the activity bears a substantial relationship to traditional
maritime activity, is also easily satisfied. Courts have routinely held that the transport and carriage
of passengers for compensation or recreational purposes “constitutes quintessential maritime
activity affecting commerce.”"! As a result, Defendant was engaged in the business of transporting

Plaintiffs, on the waters of St. Thomas, for the recreational purpose of snorkeling, in exchange for

® See e.g. Donnelly, 

- 15 (ruling that a kiteboarding injury could lead to a disruption in maritime
commerce); Szollosy v Hyatt Corp., 208 F. Supp. 2¢ 205 (D. Conn. 2002) (noting that a jet ski accident had a
potentially disruptive impact because the collision could have made commercial travel difficult due to the need to
provide medical treatment of the injured person).

" Foremost Ins. Co. v. Richardson, 

 (1982).

* See e.g. Gibbs, 314 F.3d at 129 (a case where Gibbs, a passenger, “suffered second degree burns on the soles of his
feet when he stepped onto the hot surface of the deck of the Carnival vessel, the Destiny”); Oran v. Fair Wind Sailing,
inc., No. 08-0034, 2009 U.S. Dist. Lexis 110350, at *7 (D.V.I. Nov. 23, 2009) (a case involving a slip and fall of a
passenger while aboard an ocean-going sailing school catamaran); Piché v. Stockdale Holdings, LLC, No. 2006-79,
2009 U.S, Dist. Lexis 24237, at *2- 3 (D.V.I. Mar. 24, 2009) (case involves an injured passenger onboard a cruise
ship excursion boat); Hendricks v. Transp. Servs. of St. John, 41 V.1. 21 (Terr, Ct. 1999) (passenger injured when he
fell through an unsecured hatch while boarding a boat moored at Red Hook, St. Thomas).

° See Complaint at para. 29.

'" See generally Hargus v. Ferocious & Impetuous, LLC, 

, 136- 38 (3d. Cir. 2016); Donnelly, 

 (stating that “many courts make the point that rescue efforts and after-accident investigations can
lead to disruption of maritime commerce”); Leach, 2019 VI SUPER 110U at *19.

'"' Hendricks, 41 V.I. at 25.
Cynthia I. Shuster et al. v. Barracuda Charters, LLC et al. Cite as 

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compensation, establishing that this is precisely the type of activity that evinces a substantial
relationship to traditional maritime activity and satisfies the second sub-requirement of the second
prong. At this juncture, this Court cannot glean any reason not to conclude that this case sounds in
admiralty law.

ii. Whether the Superior Court has Jurisdiction over_an Admiralty or
Maritime Cause of Action

47. The next assessment requires a determination of whether this Court has jurisdiction over a
cause of action that sounds in maritime or admiralty law. To wit, title 28, section 1333 of the United
States Code provides that “the district courts shall have jurisdiction, exclusive of the courts of the
States, of: (1) any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all
other remedies to which they are otherwise entitled.” (emphasis added).'*_ Offshore Logistics v.
Tallentire, 

, 222- 23 (1986) explained that the “saving to suitors” clause allows
litigants to pursue in personam maritime actions in state courts because they are competent to
adjudicate such proceedings “so long as it does net attempt to give in rem remedies or make
changes in substantive maritime law.”'? Thus, state courts are constrained by the “reverse-Erie”
doctrine which requires that the state court use “substantive remedies afforded by the State but
conform to the governing federal maritime standards.”'4 Simply put, absent an express invocation
of admiralty law by Plaintiffs, the saving-to-suitors clause permits a state court to entertain
maritime causes of action only if it safeguards certain procedural rights and utilizes substantive

local law that is not in conflict with maritime law.'> Consequently, the saving-to-suitors clause

12 28 ULS.C.S. § 1333 (1948).

3 Offshore Logistics v. Tallentire, 

, 222- 23 (1986) (quoting Red Cross Line v. Atlantic Fruit Co., 

 (1924)).

'4 fd. at 223.

'5 See Hendricks v. Transp. Servs. of St. John, 4\ V.1. 21, 27- 28 (Terr. Ct. 1999) (holding that when admiralty law is
not invoked, “both procedural and substantive maritime law is applied exclusively”).

4
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effectively preempts the case from removal to federal court and permits the plaintiff to retain
common law right to a jury trial.'° Thus, although this case sounds in admiralty law, by virtue of
the saving-to-suitors clause, this Court is empowered to hear the case and has jurisdiction over it.

iii. Whether Local Law or Federal Maritime Law Applies

48. The next inquiry for this Court concerns whether local law or federal maritime law is
applicable. Courts must ensure uniformity in maritime law across all jurisdictions and “state law
may supplement maritime law when maritime law is silent or where a local matter is at issue, but
state law may not be applied where it would conflict with maritime law.”'’ This is not a situation
where applying Virgin Islands law would interfere with maritime law. Here, the elements of
maritime negligence and common law negligence are one and the same. Much like local jaw,
maritime negligence requires four (4) elements: |.) that Defendant had a duty, 2.) that there was a
breach of that duty, 3.) that Defendant actually and proximately caused the damages to Plaintiff,
and 4.) that Plaintiff suffered actual injury or has damages.'® Accordingly, this Court will apply
Virgin Islands law to the maritime negligence claim. The same is applicable to the claims of loss
of consortium and the negligent infliction of emotional distress. Because the elements of these
claims are similar to federal law, there is no apparent reason why Virgin Islands law should not be
applied. As such, this Court will apply Virgin Islands law to all the claims presented by Plaintiffs.

49. Plaintiffs bring this cause of action pursuant to maritime negligence arguing that Defendant

6 See e.g. Lewis v. Lewis & Clark Marine, Inc., 

, 443- 45, 454 (2001) (stating that “trial by jury is an
obvious, but not exclusive, example of the remedies available to suitors”); Leach v. Cruise Ship Excursions, Inc., 2019
VI SUPER 110U, at *15 (V.I. Super. Ct. 2019) (“the saving-to-suitors clause has been interpreted... as a means of
preserving the role of state courts in administering common law remedies, such as a jury trial, in admiralty cases”);
Hendricks, 41 V.1. at 28 n. 11.

'7 Leach, 2019 VI SUPER 110U, at *22 (citing Floyd v. Lykes Bros. S.S. Co., 

 (3d Cir. 1988) and
Sosebee v Rath, 

 (3d Cir. 1990)).

'8 See Antilles Sch., Inc. v. Lembach, 64 V.1. 400, 409 (V.L 2016); Machado v. Yacht Haven U.S. V.L, 61 V.1. 373, 380
(V.I. 2014).
Cynthia L. Shuster et al. v. Barracuda Charters, LLC et at. Cite as 

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Memorandum Decision

improperly and negligently transported 12 passengers, thereby overloading the vessel, and in doing
so, Defendant failed to take precautions to prevent Plaintiffs’ reasonably foreseeable injuries.'”
Further, Plaintiffs argue that Defendants violated the Howard Coble Coast Guard and Maritime
Transportation Act of 2014, section 319, “Uninspected Passenger Vessels in the United States
Virgin Islands (referred to as the “Obama Era Amendment” by Plaintiffs), codified at 

(b)(1)(A) (2014). The Act states:
“(b)(1) In applying this title with respect to an uninspected vessel of
less than 24 meters overall in length that carries passengers to or
from a port in the United States Virgin Islands, the Secretary shall
substitute ‘12 passengers’ for ‘6 passengers’ each place it appears in
section 2101(42) if the Secretary determines that the vessel complies
with, as applicable to the vessel
“(A) the Code of Practice for the Safety of Small Commercial
Motor Vessels (commonly referred to as the ‘Yellow Code’), as
published by the U.K. Maritime and Coastguard Agency and in
effect on January 1, 2014...”2°
410. This section, inter alia, has two (2) conditions: 1.) it permits a vessel of up to 80 feet to
transport up to twelve (12) passengers, and 2.) it requires a certification of compliance.*! Therefore,
according to the statute, issuance of a certificate to operate comes after an inspection that
determines the vessel is eligible to transport the safe number of passengers and an absence of the

certificate is proof that the vessel was not in compliance with relevant regulation.?* Meanwhile

Defendant argues that because this case sounds in admiralty law, the seaworthiness of the vessel

'? See Plaintiffs’ Reply Brief, pp. 2-3.

70 

(b)(1)(A) (2014).

7! See Code of Practice for the Safety of Small Commercial Motor Vessels, Section 27.5 which governs the issuance
of a certificate of compliance under the code. More specifically, section 27.5.5 states in relevant part that “upon
satisfactory review of the documented arrangements, fittings and equipment provided in compliance with the Code,
also the required declarations in the completed report form SCV2 and approval as appropriate of either the stability
information booklet or required stability information, the Certifying Authority wil! issue the final full-term certificate.”
?? Plaintiffs’ Motion in Limine, pp. 3-4.
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is the proper cause of action and only seamen, not passengers, have standing to sue.” Thus,
Plaintiffs cannot bring this cause of action against Defendant.
q. li. This Court is in agreement with Plaintiffs. Plaintiffs have set forth no claim of
unseaworthiness as it asserts that it is not suing the M4/V Cuda itself.2* Much like the U.S. Supreme
Court in Kermarec v. Compagnie Generale Transatlantique, 

 (1959) found, this Court
also finds that Plaintiffs’ negligence claim is permissible and valid.?> To this Court, the issue is
whether Barracuda Charters was negligent in allowing more than six (6) passengers on the vessel
that had not been inspected, much less certified by an authorizing body. As such, based on a literal
reading of the statute and particularly in light of Defendant’s failure to obtain the requisite
certificate to demonstrate that they are indeed in compliance, Barracuda Charters should be
precluded from asserting a claim based on the statute. Even more noteworthy, Defendant has yet
to set forth a legitimate reason as to why it has not obtained the same certificate of compliance,
the absence of which bars it from use at trial; thus, it remains an undisputed fact that Barracuda
Charters lacks the certificate. Therefore, Defendant is prohibited from asserting a claim based on

(b)(1)(A).

B. LIMITATION OF LIABILITY PROVISION ANALYSIS
4] 12. In order to properly address the limitation of liability claim, a preliminary analysis of the
interplay between the saving-to-suitors clause available to Plaintiffs and the application of the
Limitation of Liability Act presented by Defendant is required.*° The Limitation of Liability Act
*3 See Defendant's Opposition Brief, pp. 3-4.
*4 Plaintiffs’ Reply Brief, p. 2.
5 Kermarec v. Compagnie Generale Transatlantique, 

 (1959) (ruling that “the owner of a ship in
navigable waters owes to all who are on board... the duty of exercising reasonable care under the circumstances of
oS See a Lewis v. Lewis & Clark Marine, Inc., 

, 448- 49 (2001) (citing Langnes v. Green, 

 (1931)) (holding that the petitioner can proceed with his claim in state court and the federal court retains
jurisdiction over the limitation of liability claim).
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of 1851, codified at title 46, section 305 of the United States Code, sub-sections 30505 and 30506,
provide that “without the privity or knowledge thereof of a maritime accident, the 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. If the vessel has more than one owner, the proportionate
share of the liability of any one owner shall not exceed that owner’s proportionate interest in the
vessel and pending freight.””’ Accordingly, in Lewis v. Lewis & Clark Marine, Inc., 

 (2001), the U.S. Supreme Court decided that a federal district court is divested of exclusive
jurisdiction of a maritime claim in two situations, if the value of the limitation fund and/or the
value of the vessel exceeds the value of the claim, and if there is only one claimant.”® Plainly
speaking, a district court and a state court can have concurrent jurisdiction of a case arising from
the same operative facts; therefore, although a state court is competent to address all! other claims
pursuant to the saving-to-suitors clause, the federal district court retains jurisdiction of any claims
arising under the Limitation Act.

4 13. Nonetheless, the Court’s analysis is two-fold. In its moving papers, Barracuda Charters
claims that its liability should be capped at $114,300, the actual purchase price of the vessel.?? It
argues that even if the amount does not reflect the upgrades made to the vessel subsequent to its
purchase or the fair market value, such an omission is not “grounds for striking the amount” but
merely a matter that Plaintiffs can contest at trial.*° However, the Shusters assert, that the valuation

is based on an erroneous foundation as Defendant’s marine liability expert, Thomas Danti,

 & 30506 (2006). See also Lewis v. Lewis & Clark Marine, Inc., 

, 455- 56 (2001);
In re Complaint of B&C Seafood, LLC, No. 18-1560, 2019 U.S. Dist. Lexis 213254, at *5 (D.N.J. Dec. 11, 2019); fn
re Complaint of Weeks Marine, Inc., No. 18-16702, 2019 U.S. Dist. Lexis 91356, at *6 (D.N.J. May 31, 2019).

28 Lewis, 

- 56. See also Gorman v. Cerasia, 

 (3d Cir. 1993); in re Complaint of Weeks
Marine, Inc., 2019 U.S. Dist. Lexis 91356, at *7-8.

*? See generally Defendant’s Opposition Brief, pp. 5-6.

® Defendant's Opposition Brief, p. 6.
Cynthia L Shuster et al. v. Barracuda Charters, LLC et al. Cite as 

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admitted that: 1.) he is not a marine surveyor or valuation expert, 2.) his valuation was based on a
2015 marine survey, 3.) that was created by someone else, 4.) with whom he has not consulted
(nor will be called as a witness), and 5.) that is now too old to be reliable.*! In addition, Plaintiffs
also contend that Defendant should not be privy to the benefits of the limitation of liability clause
because Barracuda Charters failed to comply with the pre-requisites found in the statute.”?
Specifically, Plaintiffs maintain that Defendant’s lack of compliance in producing a certificate for
the M/V Cuda as required by the “Yellow Code” removes its right to assert the limitation of liability
defense by virtue of the language contained in the statute itself.*? Here as before, Plaintiffs are
correct.
414. This is the Court’s first analysis. Irrespective of the provisions of the general limitation of
liability clause, the introductory language of chapter 301 places liability squarely on the owner and
master of a vessel. The opening section of this chapter, pursuant to section 30102, states in relevant
part as follows:
(a) Liability. The owner and master of a vessel, and the vessel, are
liable for personal injury to a passenger or damage to a passenger’s
baggage caused by
(1) A neglect or failure to comply with part B ... of subtitle II of
this title; or
(b) Not subject to limitation. A liability imposed under this section is

not subject to limitation under chapter 305 of this title. (emphasis
added).**

§ 15. Here, section 4105 is found in subtitle II, part B, of title 46 of the United States Code and

the limitation of liability provision appears in subtitle III, chapter 305, section 30505 of the same

3! Plaintiffs’ Motion in Limine, p. 7.

32 See generally Plaintiffs’ Motion in Limine, pp. 5-6.
*? See Plaintiffs’ Motion in Limine, p. 6.

4 

 (2006).
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title 46.°° These statutes must be read contextually and interpreted literally. Thus, as provided by
the opening language of chapter 301, a failure to fully comply with section 4105, which appears
in the preceding subtitle, renders the limitation of liability provision, found in the succeeding
subtitle, inapplicable to Defendant. Consequently, because satisfaction of one statutory provision
triggers an application of the benefits of the next statutory provision, Defendant cannot raise the
Limitation Act as a defense. Defendant’s failure to adhere to or comply with the provisions and
requirements of section 4105 inherently leads to an unavailability of the Limitation Act to
Defendant because it only follows, to this Court, that the duties and obligations contained in
subtitle II have to be preliminarily satisfied before issues of liability found in the latter subtitle III
can be adequately pursued. This Court finds that Barracuda Charters is estopped from invoking
the Limitation of Liability Act as an affirmative defense and as a result, cannot introduce evidence
regarding the value of the vessel because the certification requirement pursuant to section 4105
has not been satisfied.

4,16. Accordingly, the Court’s second analysis is as follows. Even if this Court were to find that
the Limitation Act and its provisions are applicable to Defendant, based on the prior jurisdictional
analysis conducted in accordance with title 28, section 1333 of the United States Code, this Court
holds because the Limitation Act proceeds as an im rem action against the vessel itself, only the
district courts have jurisdiction over such a matter.”° Furthermore, a state court would otherwise
be empowered to hear claims revolving around limitations of liability if: 1.) there is one single

claimant, and 2.) the value of the vessel exceeds the amount of damages. Here, neither of these

*? Subtitle II, part B broadly governs the “Inspection and Regulation of Vesse] while Subtitle [I] oversees “Maritime
Liability,”
*© See supra fn. 14-15. See also Lewis, 531 U.S, at 453- 54.

10
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exceptions are met, so, the district court still retains jurisdiction.*’ Thus, by reconciling Plaintiffs’
right to remedy under the saving-to-suitors clause with Defendant’s right to seek a limitation of
liability under the Limitation Act, this Court finds that it is devoid of jurisdiction to hear the issue
concerning limitation to lability. Accordingly, it is hereby

ORDERED that Plaintiffs’ Motion in Limine is GRANTED, in its entirety; and it is
hereby

ORDERED that a copy of this Order shall be directed to Joel H. Holt, Esquire, Julie

German Evert, Esquire, Matthew J. Duensing, Esquire, and Joseph D. Sauerwein, Esquire.

Dated: January Ao v0

Judge of the Syperior Court
of the Virgin Islands

*” See fn. 28, Lewis, 

 (finding that there are “two exceptions to exclusive federal jurisdiction under
which a claimant is allowed to litigate his claim in state court. The first is where the value of the limitation fund
exceeds the total value of all claims asserted against the vessel owner. The second is where a single claimant brings
an action against the vessel owner seeking damages in excess of the value of the vessel.”).

1]