Brizo, LLC, as owner of the M/V Honey, 2007 163 Foot Twin Engine Yacht (ON 739735) v. Urieli Ramirez Carbajal ( 2021 )

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-11204
____________________
BRIZO, LLC, AS OWNER OF THE M/V HONEY, 2007
163 FOOT TWIN ENGINE YACHT (ON 739735),
Plaintiff-Counter Defendant-
Third Party Plaintiff-Appellee,
versus
URIELI RAMIREZ CARBAJAL,
ROSALIA GORGONIO IXBA,
Defendants-Appellants,
UNKNOWN CLAIMANTS,
Claimant,
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2 Opinion of the Court 20-11204
OLD PORT COVE HOLDINGS, INC.,
Claimant - Counter Claimant -
Third Party Defendant,
EASTERN MARINE SERVICES, INC.,
ZACHARY STAGGS,
Counter Claimants-Third Party Defendants.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:18-cv-80855-RLR
____________________
Before BRANCH, GRANT, and JULIE CARNES, Circuit Judges.
JULIE CARNES, Circuit Judge:
This case involves a horrible accident that led to the death
of a diver, Luis Gorgonio Ixba. While cleaning the hull of the M/V
Honey, which was a vessel owned by Brizo, LLC, Ixba was killed
when a crew member activated a bow thruster. Urieli Ramirez
Carbajal and Rosalia Gorgonio Ixba, the plaintiffs in this action, are
the personal representatives of Ixba’s estate.
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20-11204 Opinion of the Court 3
Ixba’s estate 1 filed a wrongful death lawsuit in Florida state
court alleging, among other things, negligence against Brizo and
the crew of the M/V Honey. Pursuant to the Limitation of Liabil-
ity Act 2 and Supplemental Rule 5 for exoneration of liability, Brizo
then filed a complaint in admiralty in the United States District
Court for the Southern District of Florida. In response to that com-
plaint, Ixba filed a Notice of Claims against Brizo, in which he al-
leged Brizo’s negligence.
Following discovery, the district court granted Brizo sum-
mary judgment. The court found Ixba solely at fault for the acci-
dent because he never notified the crew that he was present before
he began his dive. In addition, the court faulted Ixba for having
failed to employ a dive flag, as required by safety regulations. Ixba
appeals. After careful review and with the benefit of oral argu-
ment, we affirm.
I. BACKGROUND
A. Factual Background
The pertinent facts of this case, as reflected in the district
court’s order, are undisputed. Brizo owns the M/V Honey, a 164-
foot yacht. Brizo contracted with Eastern Marine Services, a
1 The district court recognized that the Claimant in this case is the estate of
Mr. Ixba. However, in the interest of brevity and clarity, the court referred to
the Claimant as “Ixba.” In the interest of consistency, we will do the same.
2 46 U.S.C. §§ 30501–30512.
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4 Opinion of the Court 20-11204
commercial diver company, to clean its hull. On June 21, 2017,
Eastern Marine sent an e-mail to Captain Smart of the M/V Honey,
stating that the vessel’s next hull cleaning “was coming up approx-
imately 6/26 [at] 7:00 P.M.,” which was five days later. The email,
however, informed Captain Smart that this was just an estimated
date, subject to change as: “our schedules constantly change, so
the date and time is at best a rough approximation, thanks for un-
derstanding the dynamics of our world.” There was no further
communication from Eastern Marine regarding the upcoming
cleaning and Captain Smart did not mention to his crew that the
hull was due to be cleaned in the near future.
Eastern Marine selected Ixba to be the diver to clean Brizo’s
vessel. On June 27th, which was one day after the approximate
date Eastern Marine had projected to Captain Smart, Ixba arrived
to clean the yacht. At the time of Ixba’s arrival, all crew members
were inside the vessel. Even though Eastern Marine divers cus-
tomarily notify a crew member when they are about to commence
diving operations, sadly Ixba never did so. Instead, he approached
the vessel without identifying himself or notifying the crew mem-
bers on the vessel that he had arrived and was about to begin his
dive. Because he then immediately entered the water without ever
announcing his presence, no member of the crew was even aware
that he was under the boat. Adding to the lack of precautions taken
by Ixba, he also failed to mark his presence in the water with a diver
flag, as required by regulation.
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20-11204 Opinion of the Court 5
Unaware of Ixba’s presence, Captain Smart had disem-
barked the vessel after Ixba had begun his dive, leaving Chief Mate
Marks in charge. Unaware that anyone was diving under his boat
and needing to move the boat closer to the dock to load some jet
skis, Chief Mate Marks began the process of activating a bow
thruster on the yacht. Before activating the thruster, Marks walked
around the vessel and looked into the water—he saw no bubbles.
Seeing no danger, Marks activated the thruster, tragically killing
Ixba.
B. The District Court’s Order Granting Brizo Summary
Judgment
Brizo moved for summary judgment on the question of its
liability. The district court concluded that because Ixba was a “cov-
ered worker” within the Longshore and Harbor Workers Compen-
sation Act, 33 U.S.C. § 901 (“Longshore Act”), his claim for negli-
gence against Brizo is governed by that Act. In so ruling, the court
rejected Ixba’s contention that he was not covered by the statute.
The court acknowledged that an exemption from the Longshore
Act for work on recreational vessels potentially exists, but noted
that “[t]he exemption only applies when the worker or accident at
issue is covered by a state worker’s compensation law. 33 U.S.C.
§ 902(3)(F).” The court stated that Ixba “cites no evidence” that
state worker’s compensation provisions apply to the accident in
this case. Accordingly, the court concluded that Ixba was subject
to the Longshore Act.
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Having found that that the Longshore Act covered this acci-
dent, the court considered the three duties a vessel owes a contract
harbor worker under that statute, as set out in Scindia Steam Nav-
igation Co. v. De Los Santos, 451 U.S. 156 (1981): (1) a general duty
to “turnover” a vessel in a safe manner to workers, (2) a duty to
exercise reasonable care in the areas of the ship under active con-
trol of the vessel, and (3) a duty to intervene. The district court
reasoned that “the premise of all of the Scindia duties is that the
vessel crew knows that workers are present to work on the vessel.”
The court found that Brizo owed no duty to Ixba because “[n]ot
only did Ixba fail to notify anyone on the vessel of his presence or
work operations, he submerged himself under the water—he be-
came invisible to the crew.” Accordingly, the court concluded that
Brizo did not violate any duty owed Ixba, and it granted Brizo sum-
mary judgment.
II. DISCUSSION
In arguing that the district court erred in granting summary
judgment to Brizo, Ixba contends that the Longshore Act does not
apply to the present case and that, instead, his negligence claims
should be assessed under the general duty of reasonable care that
is applicable in maritime tort cases, not the limited Scindia duties
owed when the Longshore Act applies.
“We review a district court’s grant of summary judgment de
novo, viewing all the evidence, and drawing all reasonable factual
inferences, in favor of the nonmoving party.” Stephens v. Mid-
Continent Cas. Co., 749 F.3d 1318, 1321 (11th Cir. 2014). Summary
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20-11204 Opinion of the Court 7
judgment must be granted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary
judgment is improper, however, “if the evidence is such that a rea-
sonable jury could return a verdict for the nonmoving party.” An-
derson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A. The District Court Properly Granted Brizo Summary
Judgment
The district court concluded that the Longshore Act governs
Ixba’s accident and that Brizo is entitled to summary judgment be-
cause it did not violate any duty owed Ixba under that statute. The
Longshore Act “establishes a comprehensive federal workers’ com-
pensation program that provides longshoremen and their families
with medical, disability, and survivor benefits for work-related in-
juries and death.” Troutman v. Seaboard Atl. Ltd., 958 F.3d 1143,
1146 (11th Cir. 2020), quoting Howlett v. Birkdale Shipping Co.,
S.A., 512 U.S. 92, 96 (1994). Further, and of pertinence in this case,
“[t]he statute was amended in 1972 to permit a longshoreman to
‘seek damages in a third-party negligence action against the owner
of the vessel on which he was injured.’” Id., quoting Howlett, 512
U.S. at 96; see Longshoremen’s and Harbor Workers’ Compensa-
tion Act Amendments of 1972, Pub. L. No. 92-576, § 18(a), 86 Stat.
1251, 1263 (codified as amended at 33 U.S.C. § 905(b)).
Ixba contends that his negligence claim is not governed by
the Longshore Act, with the narrow Scindia duties it imposes on
vessels. Rather, Ixba argues his claim should be assessed in
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8 Opinion of the Court 20-11204
accordance with general maritime law, which imposes a general
duty of reasonable care. We first address the applicability of the
Longshore Act.
1. The Longshore Act Governs Ixba’s Negligence
Claim
Section 905(b) of the Longshore Act provides a non-seaman
maritime worker with a potential negligence claim against a vessel
when he is injured while performing work on that vessel. 33 U.S.C.
§ 905(b); Norfolk Shipbuilding & Drydock Corp. v. Garris, 532 U.S.
811, 818 (2001). “A harbor worker whose injury is caused by the
negligence of a vessel, or such harbor worker’s personal repre-
sentative, may bring an action against the vessel under 33 U.S.C.
Section 905(b).” Roach v. M/V Aqua Grace, 857 F.2d 1575, 1581
(11th Cir. 1988). The remedy provided by the Act is “exclusive of
all other remedies against the vessel.” 33 U.S.C. § 905(b) (emphasis
added).
For the Longshore Act to apply, a worker ordinarily must
satisfy both a “situs” requirement and a “status” requirement. Dir.,
OWCP v. Perini N. River Assocs., 459 U.S. 297, 299 (1983). The
“situs” test requires that the worker’s injury occur “upon the navi-
gable waters of the United States.” Id.; 33 U.S.C. § 903(a). It is un-
disputed that Ixba was injured on “navigable waters” and that the
situs requirement is therefore satisfied.
To satisfy the “status” requirement, the worker “must be
‘engaged in maritime employment’ within the meaning of § 2(3) of
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20-11204 Opinion of the Court 9
the Act.” Id. The Longshore Act defines a covered employee as
“any person engaged in maritime employment, including . . . any
harbor-worker including a ship repairman, shipbuilder, and ship-
breaker.” 33 U.S.C. § 902(3). We have held that a diver commis-
sioned to scrape barnacles from the hull of a docked vessel falls
within this definition. Roach, 857 F.2d at 1579. Ixba does not dis-
pute that he performed the type of work required for Longshore
Act coverage to apply, meaning that the status requirement would
be satisfied here absent an applicable exception.
Ixba argues that such an exception exists, as the Longshore
Act excludes “individuals employed to repair any recreational ves-
sel.” 33 U.S.C. § 902(3)(F). Brizo does not dispute that the M/V
Honey is a recreational vessel. However, Brizo notes that the ex-
clusion applies to employees working on recreational vessels only
“if [they] are subject to coverage under a State workers’ compen-
sation law.” 33 U.S.C. § 902(3)(F). Brizo argues that because Ixba
failed to demonstrate coverage of his claim under Florida’s work-
ers’ compensation law, the recreational vessel exclusion does not
apply and the Longshore Act continues to govern his claim. We
agree.
The record below is devoid of any evidence or argument
from Ixba that his claim is covered by state workers’ compensation
law. Moreover, Ixba’s employer, Eastern Marine Services, stated
in a sworn interrogatory response that Ixba “was a Truly Self-Em-
ployed Independent Contractor with no Controlling Employer.”
Florida law excludes “independent contractor[s] who [are] not
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10 Opinion of the Court 20-11204
engaged in the construction industry” from the definition of “em-
ployee” in its workers’ compensation law. Fla. Stat. § 440.02(15)(1).
Nevertheless, Ixba did not refute—before the district court or here
on appeal—Eastern Marine’s sworn statement that he was an inde-
pendent contractor.3 As such, this record does not permit a con-
clusion that Ixba’s claim is covered by Florida workers’ compensa-
tion law. Accordingly, the district court did not err in determining
that the recreational vessel exclusion in the Longshore Act is inap-
plicable. Therefore, Ixba’s claim is governed by the Longshore Act.
2. Brizo Did Not Breach any Duty Owed to Ixba
under the Longshore Act
Ixba failed to demonstrate any genuine issues of material
fact regarding Brizo’s liability for negligence under 33 U.S.C.
§ 905(b). A shipowner owes a harbor worker three duties under
Scindia: (1) a duty to turn over the ship to the worker in a safe
3 Despite the express statutory requirement for the recreational vessel excep-
tion to apply, Ixba failed to address below in his brief opposing summary judg-
ment the applicability of state workers’ compensation coverage when arguing
that the exception applied, declined to move for a sur-reply when the im-
portance of the issue became obvious from Brizo’s reply supporting summary
judgment, and failed to file a motion for reconsideration or alter/amend the
judgment to address the issue. On appeal, Ixba merely makes the bald asser-
tion that the Florida Workers Compensation Act “covers accidental injury or
death arising out of work performed on recreational vessels in Florida,” but
fails to attempt to refute the proffered evidence or to address arguments that
he was an independent contractor and, therefore, not subject to state workers’
compensation coverage.
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manner, after which duties arise to (2) exercise reasonable care in
the areas of the ship under the active control of the vessel and (3) in-
tervene in certain circumstances upon awareness of an actual dan-
ger to the worker. Troutman., 958 F.3d at 1146–47; Howlett, 512
U.S. at 9; see Scindia, 451 U.S. at 167–78. While often applied in
the context of stevedoring operations involving injury of long-
shoremen, the Scindia duties also apply when harbor workers per-
form repairs underwater or on board the ship. Roach, 857 F.2d at1581–82, citing Hill v. Texaco, Inc., 674 F.2d 447, 450–51 (5th
Cir.1982) and Casaceli v. Martech International, Inc., 774 F.2d 1322(5th Cir.1985)).
The turnover duty requires a vessel to “‘exercise ordinary
care under the circumstances’ to turn over the ship and its equip-
ment and appliances ‘in such condition that an expert and experi-
enced stevedoring contractor, mindful of the dangers he should
reasonably expect to encounter, arising from the hazards of the
ship’s service or otherwise, will be able by the exercise of ordinary
care’ to carry on cargo operations ‘with reasonable safety to per-
sons and property.’” Howlett 512 U.S. at 98, quoting Fed. Marine
Terminals, Inc. v. Burnside Shipping Co., 394 U.S. 404, 416–417,
n.18 (1969). The active-control duty requires a shipowner to exer-
cise reasonable care to prevent injuries to harbor workers in areas
that are under the shipowner’s active control. Id. The duty to in-
tervene requires a shipowner to intervene if “during [contractor]
operations, the shipowner becomes aware that the ship or its gear
poses a danger to the [worker] and that the [contractor] is failing,
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12 Opinion of the Court 20-11204
unreasonably, to protect the [worker].” Clark v. Bothelho Shipping
Corp., 784 F.2d 1563, 1565 (11th Cir. 1986).
The district court found that the Scindia duties do not apply
to this case for two reasons. First, the court stated “the second and
third Scindia duties [active control and intervention] only arise af-
ter the first duty (safe turnover) is triggered by a vessel being turned
over to workers, but no turnover occurred in this case.” Second,
the district court reasoned that “the premise of all of the Scindia
duties is that the vessel crew knows that workers are present to
work on the vessel.” As such, the court concluded that Brizo did
not owe any of these duties to Ixba because Ixba “fail[ed] to notify
anyone on the vessel of his presence or work operations,” sub-
merged himself under the water, and became invisible to the crew.
On appeal, Ixba argues that Brizo violated the second Scin-
dia duty, i.e. the duty to exercise reasonable care to prevent injuries
to workers in areas that are under the shipowner’s active control.
Ixba contends that the email sent from Eastern Marine to Captain
Smart six days before the accident providing a rough approxima-
tion when hull cleaning might occur triggered the vessel’s active
control duty which was breached when the crew activated the bow
thruster. We disagree.
As an initial matter, Ixba does not dispute that he began
work and entered the water without notifying the crew of his pres-
ence. Nor does Ixba dispute that the crew never turned over any
portion of the vessel to him. Ixba cites no authority, and we are
aware of none, supporting the notion that the active control duty
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20-11204 Opinion of the Court 13
may be triggered when a worker begins work without notifying
the crew of his presence and denies the vessel an opportunity to
satisfy its turnover duty. To so hold would effectively impose a
general duty on vessels to exercise reasonable care to protect har-
bor workers in contravention of the statutory scheme and binding
precedent. Scindia, 451 U.S. at 172; Howlett, 512 U.S. at 97 (ex-
plaining the fundamental changes effected by the 1972 amendment
to the Act, i.e. shifting responsibility for preventing injuries away
from vessels and onto employers, and noting that “[s]ubjecting ves-
sels to suit for injuries that could be anticipated and prevented by a
competent stevedore would threaten to upset the balance Con-
gress was careful to strike in enacting the 1972 amendments.”). In-
deed, the shipowner is entitled to rely on the harbor worker’s em-
ployer to supervise worker operations and ensure employee safety.
Troutman, 958 F.3d at 1147 (“Generally, shipowners have ‘a right-
ful expectation’ that a stevedoring company will ‘perform [its] task
properly without supervision by the ship’ and that the stevedore
will ‘avoid exposing the longshoremen to unreasonable hazards.’”
(quoting Scindia, 451 U.S. at 170)).
Rather than being burdened with a general duty to exercise
reasonable care, vessels must fulfill only the limited duties outlined
in Scindia. The Supreme Court describes these duties as operating
in a temporal and sequential fashion. For instance, Howlett de-
scribes the turnover duty as “relat[ing] to the condition of the ship
upon the commencement of stevedoring operations.” Howlett,
512 U.S. at 98 (emphasis added). Howlett further describes the
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second duty, the “active control” duty allegedly breached here, as
being “applicable once stevedoring operations have begun,” sug-
gesting that the vessel was already turned over to the workers and
excluding liability for alleged improper conduct occurring before
operations have begun. Id. (emphasis added); Roach, 857 F.2d at1581–82 (describing the turnover duty as the “initial duty” that
must be satisfied “[b]efore a stevedore begins work” (emphasis
added)). Here, Ixba commenced his work without notifying the
crew of his presence, depriving the crew of an opportunity to turn
over the vessel in a condition safe for diving operations, such as by
locking-out and tagging-out the vessel’s motors. Having prevented
the crew from satisfying its initial duty to turn over the vessel in a
safe condition, Ixba cannot rightfully claim breach of the subse-
quent active control duty, which necessarily depends on the ves-
sel’s knowledge that worker operations have begun. See Scindia,
451 U.S. at 167 (A vessel violates the active control duty if it “ac-
tively involves itself in the cargo operations and negligently injures
a longshoreman.”).
In essence, Ixba argues that because Brizo had been notified
that the diver would arrive at some time in the next few days to
clean the hull, Brizo should be deemed to have been on perpetual
constructive notice of the diver’s arrival—whenever that may have
been and even if the diver never announced his arrival—and thus
to have turned the boat over to the diver at any point that the indi-
vidual chose to arrive—no matter that the diver took no steps to
announce his presence and that, as a result, the crew had absolutely
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20-11204 Opinion of the Court 15
no knowledge that he was there. In support of his argument, Ixba
relies on Eastern Marine’s email, which he says provided sufficient
notice to trigger the active control duty. This argument does not
persuade us. First, the email is too indefinite to trigger that duty.
Sent on June 21, the email merely stated that the vessel’s next hull
cleaning “was coming up approximately 6/26 [at] 7:00 P.M.,” five
days later. Moreover, the email characterized that date and time
as “at best a rough approximation” and noted that diver “schedules
constantly change.” Absent a follow-up from Eastern Marine co-
ordinating a more precise date and time, which never came, the
email sent Captain Smart provided little more than an affirmation
that Eastern Marine planned to clean the hull of the M/V Honey
sometime in the future.
Second, even if the email could be viewed as triggering a
duty owed to Ixba at the date and time specified, Ixba did not show
up at the appointed time. The incident occurred on June 27, a day
after the scheduled cleaning. Ixba cites no authority supporting the
proposition that an indefinite email like that sent by Eastern Marine
to Captain Smart could trigger any of the Scindia duties, much less
require the vessel to prepare for the diver’s arrival (e.g., by locking
and tagging out its motors) and maintain the vessel in a prolonged
disabled state for an unknown period of time in order to accommo-
date a diver who might or might not arrive at any time and who
could not be expected to take the simple, common sense step of
letting the crew know he was there.
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In rebuttal of Ixba’s implicit argument that he was not re-
quired to give notice of his presence, the record reflects that East-
ern Marine’s divers customarily notified a member of the crew of
their presence and discussed what needed to be done before com-
mencing diving operations. Thus, Captain Smart and the crew had
a reasonable expectation that Ixba would afford them an oppor-
tunity to make the vessel safe for his diving operations upon his
arrival, especially as he had not arrived at the designated date and
time. Indeed, the vessel and its crew had a “rightful expectation”
that Ixba would not surreptitiously begin work and knowingly con-
front an unreasonably dangerous situation that could easily have
been avoided. Troutman, 958 F.3d at 1147; see Roach, 857 F.2d at1582–83 (finding “the district court correctly ruled that as a matter
of law, knowledge of the underwater condition of the slip and the
risks inherent in those conditions are properly attributable to the
divers performing a cleaning operation, and that the shipowner
therefore had no duty to warn.”). Accordingly, even if the active
control duty could be deemed to apply in some circumstances in
which the vessel had not been formally turned over to a harbor
worker, no reasonable jury could conclude that Eastern Marine’s
vague and indefinite email triggered such a duty in this instance.
For all these reasons, the district court correctly concluded
that Brizo did not breach any Scindia duty owed to Ixba and we
affirm the district court’s grant of summary judgment for Brizo.
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B. Alternatively, No Jury Could Reasonably Conclude
under General Maritime Law that Brizo Negligently
Caused the Accident
Even if the Longshore Act did not apply, meaning that gen-
eral negligence principles apply, we conclude that Ixba raised no
triable issues of fact regarding the vessel’s negligence under mari-
time law. “In analyzing a maritime tort case, we rely on general
principles of negligence law.” Chaparro v. Carnival Corp., 693 F.3d
1333, 1336 (11th Cir. 2012), quoting Daigle v. Point Landing, Inc.,
616 F.2d 825, 827 (5th Cir. 1980). To plead negligence, a plaintiff
must allege that (1) the defendant had a duty to protect the plaintiff
from a particular injury; (2) the defendant breached that duty;
(3) the breach actually and proximately caused the plaintiff’s injury;
and (4) the plaintiff suffered actual harm. Id. “[T]he benchmark
against which a shipowner’s behavior must be measured is ordi-
nary reasonable care under the circumstances.” Id., quoting Keefe
v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1322 (11th Cir. 1989).
A plaintiff “cannot succeed on a maritime negligence claim against
a shipowner unless that shipowner had actual or constructive no-
tice of a risk-creating condition.” Yusko v. NCL (Bahamas), Ltd.,
4 F.4th 1164, 1167 (11th Cir. 2021), citing Keefe, 867 F.2d at 1322.
For the same reasons that we find no violation of the Scindia
duties, we likewise conclude that the vessel lacked actual or con-
structive notice of a risk-creating condition. Brizo had no notice of
any particular day that a diver would perform the hull cleaning and
certainly no reason to believe that the diver, about to place himself
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18 Opinion of the Court 20-11204
in harm’s way under the hull of the ship, would elect not to alert
the crew prior to performing this hazardous assignment. No rea-
sonable jury could find a breach of the vessel’s duty to exercise rea-
sonable care under these circumstances. Thus, albeit with great
sympathy and sadness for Ixba and his family at the tragic events
leading to his death, we agree with the district court that Brizo is
not liable.
III. CONCLUSION
For the reasons explained above, we AFFIRM the decision
of the district court granting Brizo summary judgment.