Marina owner’s action for residential eviction against defendant who rented slip at marina, and occupied boat that remained stationary, and was used exclusively as a residence, defendant’s contention that action fell within federal admiralty jurisdiction was without merit
Plaintiff is the owner of a marina. Plaintiff rents a slip to Defendant, who owns and resides on the boat docked in the marina. Plaintiff filed this action for residential eviction based on a FIVE day notice to cure under Fla. Stat. §83.52, failure to maintain dwelling unit. The tenant argued that Admiralty Law controlled and the court had no jurisdiction, and that Plaintiff’s five day notice to cure was defective.
I. Defendant’s Admiralty Motion
This Court finds that this is not an admiralty action because the agreement between the parties is plainly not maritime in nature. Defendant’s boat is moored at a slip in Plaintiff’s marina, it remains stationary and is used exclusively as a residence. The agreement governing the obligations of the parties is a lease which provides for monthly payments for use of the slip. A maritime contract, however, must “relate to the ship as an instrument of commerce, and … a contract for the wharfage3 of a ship withdrawn from commerce is not maritime…. The reason is that such service does not pertain to the navigation of a ship, nor assist a vessel in the discharge of a maritime obligation.” Pillsbury Flour Mills Co.v. Interlake S.S. Co., 40 F. 2d 439, 440 (2nd Cir. 1930) (emphasis added). See Port Utilities Commission of Charleston v. Marine Oil Co., 173 S. C. 346, 175 S. E. 818 (1934) (state court entertained removal proceeding for slip lessee’s failure to pay rent); compare King v. Convey-Eckstein, 66 Fla. 246, 63 So. 659 (Fla. 1913) (lessees of docks may be held liable in state courts for injuries to third parties for failing to maintain premises in a reasonably safe condition).4
As this is not an admiralty case, the challenge to this Court’s jurisdiction on the basis that federal law precludes state courts from considering this type of matter cannot succeed. Accordingly, Defendant’s admiralty motion is DENIED.
II. Defendants Landlord – Tenant Motion
This Court found, Section 83.56, Fla. Stat., requires a SEVEN day notice to cure a lease violation. The five day notice to cure provided by the landlord in this case, was therefore defective.
The fact that the parties‘ lease contains a provision permitting only a five day period is of no consequence. Florida’s landlord-tenant law clearly provides that “[a] provision in a rental agreement is void and unenforceable to the extent that it …[p]urports to waive or preclude the rights, remedies, or requirements set forth in this part….” §83.47(1)(a), Fla. Stat. Thus, the notice is invalid because it contained a time shorter than that required by Florida’s landlord-tenant statute and, therefore, this cause must be dismissed. See Shapiro v. Puche, 1 F.LW. Supp. 409 (Broward County 1993).
Based upon the foregoing, Defendant’s motion is GRANTED and this case is DISMISSED.
1In essence, Defendant has moved, pursuant to Rule 1.420(b), for an involuntary dismissal for Plaintiff’s failure to show any right to affirmative relief.
2The Boat Storage & Service Agreement at paragraph 5 provides “[t]he MARINA shall…have the right to terminate this agreement upon five (5) days Notice to OWNER in the event that OWNER shall fail to observe or perform any of its other obligations hereunder.”
3“Wharfage” is generally defined as a charge for the use of a wharf, dock or slip made by the owner by way of rent or other compensation. See 79 Am. Jur. Wharves §29 (1975).
4Defendant’s related theory that this is an in rem action against the boat that converts this case into an admiralty dispute is contrary to the nature of an eviction proceeding. Plaintiff does not seek possession of the boat, rather, it seeks recovery of its exclusive right to the slip. Similarly, the relationship between the Plaintiff and the Defendant is governed by a lease, not a lien or other instrument which may give Plaintiff an interest in the boat itself. Consequently, suit was not brought against the boat (which would be possible in an in rem admiralty proceeding). See e.g. Still v. Dixon, 337 So. 2d 1033, 1035 (Fla. 2d DCA 1976). Rather, the suit was brought against the Defendant, an individual.
TCY LTD., INC., v. JOHNSON. Dade County. Case No. 94-13511-CC 23. 1995.
3 Fla. L. Weekly Supp. 72b