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

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 29, 2021
• Docket: 20-11204
• Status: Unpublished

Opinion

USCA11 Case: 20-11204 Date Filed: 10/29/2021 Page: 1 of 18

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit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, USCA11 Case: 20-11204 Date Filed: 10/29/2021 Page: 2 of 18

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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. USCA11 Case: 20-11204 Date Filed: 10/29/2021 Page: 3 of 18

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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. USCA11 Case: 20-11204 Date Filed: 10/29/2021 Page: 4 of 18

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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. USCA11 Case: 20-11204 Date Filed: 10/29/2021 Page: 5 of 18

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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. USCA11 Case: 20-11204 Date Filed: 10/29/2021 Page: 6 of 18

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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 USCA11 Case: 20-11204 Date Filed: 10/29/2021 Page: 7 of 18

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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 USCA11 Case: 20-11204 Date Filed: 10/29/2021 Page: 8 of 18

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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 USCA11 Case: 20-11204 Date Filed: 10/29/2021 Page: 9 of 18

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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 USCA11 Case: 20-11204 Date Filed: 10/29/2021 Page: 10 of 18

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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. USCA11 Case: 20-11204 Date Filed: 10/29/2021 Page: 11 of 18

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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 at 1581–82, 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, USCA11 Case: 20-11204 Date Filed: 10/29/2021 Page: 12 of 18

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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 USCA11 Case: 20-11204 Date Filed: 10/29/2021 Page: 13 of 18

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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 USCA11 Case: 20-11204 Date Filed: 10/29/2021 Page: 14 of 18

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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 at 1581–82 (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 USCA11 Case: 20-11204 Date Filed: 10/29/2021 Page: 15 of 18

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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. USCA11 Case: 20-11204 Date Filed: 10/29/2021 Page: 16 of 18

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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 at 1582–83 (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. USCA11 Case: 20-11204 Date Filed: 10/29/2021 Page: 17 of 18

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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 USCA11 Case: 20-11204 Date Filed: 10/29/2021 Page: 18 of 18

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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.