Luna v. Star of India

Decision Date08 March 1973
Docket NumberCiv. No. 72-353-GT.
Citation356 F. Supp. 59
CourtU.S. District Court — Southern District of California
PartiesAurora LUNA, Plaintiff, v. STAR OF INDIA, her engines, tackle, apparel and furniture, and Maritime Museum Association of San Diego, Defendant.

William F. Logan, San Diego, Cal., for plaintiff.

Arthur W. Jones, Jones, Tellam, Irving & Estes, San Diego, Cal., for defendant.

MEMORANDUM DECISION AND ORDER

GORDON THOMPSON, Jr., District Judge.

This action was brought by the plaintiff for injuries allegedly suffered when she slipped and fell on a stairway aboard the defendant Star of India (Star). The sole issue raised by the defendants' motion to dismiss is whether the suit properly lies within the admiralty jurisdiction of this Court. It is admitted that there is no diversity jurisdiction under 28 U.S.C. § 1332.

I

The following facts are essentially undisputed. The defendant Star of India is a three masted bark which slid down the launching-ways at Ramsey in the Isle of Man in 1863. Today, as the oldest merchant vessel afloat, she stands moored in North San Diego Bay at the Embarcadero near the foot of Ash Street, where she attracts thousands of visitors each year. Although the Star sailed around the world 21 times in her heyday, she eventually fell into grave disrepair and was headed for scrap when a group of concerned local citizens decided to preserve her as an historical relic. The square-rigger was towed to San Diego for this purpose in 1923, but due to the Depression no significant restoration was undertaken until 1959. At that time another group of citizens had her dry-docked and surveyed and determined that it would be worth the effort to repair her. The Star of India is currently owned by the Maritime Museum Association of San Diego (Association) which charges visitors a modest admission to come aboard and inspect the accommodations of her nineteenth century travelers and crew members. She has not been engaged in maritime commerce, therefore, since at least 1923, and has not been subject to the Coast Guard inspection and navigation laws since at least March 1969 when the Association presented evidence to that agency that the Star was permanently moored to the Embarcadero and was not intended to be used in the future as anything more than a floating museum.

It was pointed out to the Coast Guard Officer in Charge of Marine Inspection that the bow and stern lines were of anchor chain and could not be slipped without tools not available to the ordinary mischief maker. This evaluation was accepted by the inspector who also noted the use of shore connections for electric power and water. In a letter dated March 26, 1969, he finally determined that the Star was "substantially a land structure" and therefore exempt from the ordinary inspection and navigation laws. Subsequently, on March 19, 1971, the Star was removed from documentation by the Coast Guard, based on the above determination that she was "substantially a land structure."

The plaintiff's injury allegedly occurred on the evening of September 26, 1971, as she was going aboard the Star as an invited guest of a club which was holding a party on the premises. It is alleged that the plaintiff fell as she was descending the metal stairway leading from the top of the starboard rail to the quarter deck. This was the only regularly maintained access from shore. It is not clear why the plaintiff fell or what the extent of her injuries happen to be.

II

Since there was no dispute that the alleged negligence and injury both occurred aboard the Star of India, we are not presented with the "metaphysical" task of determining the "locality" of the tort. See Peytavin v. Government Employees Insurance Co., 453 F.2d 1121, 1122-1124 (5th Cir. 1972), and cases cited therein. The locality was admittedly maritime since the Star was afloat on navigable waters at the time in question, i. e., San Diego Bay.

Nevertheless, the defendants urge the Court to reject admiralty jurisdiction in this case, since the plaintiff has allegedly failed to demonstrate a sufficient maritime "nexus" between her injury and the ordinary concerns of the laws of admiralty. It is argued that such a maritime nexus, or connection, is necessary, in addition to maritime locality, to warrant the invocation of admiralty tort jurisdiction. This is the so-called "locality plus" test, which has been adopted by at least two other Circuits, Chapman v. City of Grosse Pointe Farms, 385 F.2d 962 (6th Cir. 1967), and Peytavin v. Government Employees Insurance Co., supra, as well as two District Courts, McGuire v. City of New York, 192 F.Supp. 866 (S.D.N.Y.1961) and Smith v. Guerrant, 290 F.Supp. 111, 113 (S.D.Tex., Galveston Div., 1968).

The plaintiff correctly points out that these decisions are of persuasive value only and cites various decisions of the Ninth Circuit which she believes require the application of the "strict locality" test of admiralty tort jurisdiction in this case. The first of these cases is Wilson v. Transocean Airlines, 121 F. Supp. 85 (N.D.Cal.1954), a wrongful death action arising from the crash of an airliner into the sea some 325 miles east of Wake Island. The question presented was whether the Death on the High Seas Act, 46 U.S.C. §§ 761-767, was the plaintiff's exclusive remedy for wrongful death. District Judge Goodman held that it was, relying primarily on the legislative history of the Act itself. 121 F.Supp. at 87-91.

It is true that the further question was raised whether the High Seas Act applied to airplanes which are flying over the ocean rather than navigating on it. In resolving this issue, the Court employed the mechanics of the "locality" rule and concluded that if the decedent had been merely injured rather than killed, his suit would have fallen within the admiralty jurisdiction, since:

"In applying the `locality' test for admiralty jurisdiction the tort is deemed to occur, not where the wrongful act or omission had its inception, but where the impact of the act or omission produces such injury as to give rise to a cause of action." Citing The Plymouth, 70 U.S. (3 Wall.) 20, 18 L.Ed. 125 (1865). 121 F. Supp. at 92.

However, the later Ninth Circuit case of Higa v. Transocean Airlines, 230 F.2d 780 (1955), apparently arising out of the same airplane crash as Wilson, indicates that this additional discussion of locality was probably unnecessary to establish admiralty jurisdiction. For the Circuit Court in Higa, after concluding that the legislative history required that actions based on the Death on the High Seas Act be brought only in the federal courts sitting in admiralty, went on to observe:

"Our disposition of this case makes unnecessary the determination whether the High Seas Act applies to airplanes which are not in any way water navigating vessels." 230 F.2d at 786.

In any event, the confusion generated by plane crashes into navigable waters has now been largely resolved by the recent Supreme Court case of Executive Jet Aviation v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454, 1972, wherein the Death on the High Seas Act was explicitly found to cover air crashes such as gave rise to the Transocean cases, above. After concluding that the "locality plus" test must be applied to most air crashes into navigable waters, Justice Stewart added the following footnote:

"Of course, under the Death on the High Seas Act, a wrongful death action arising out of an airplane crash on the high seas beyond a marine league from the shore of a State may clearly be brought in a federal admiralty court." 409 U.S. 249, at 271, 93 S.Ct. 493, at 506, n. 20.

Although the other Ninth Circuit decisions cited by the plaintiff may give lip-service to the "strict locality" rule, each contains a sufficient maritime nexus which renders it consistent with the "locality plus" rule of admiralty tort jurisdiction. Mings v. United States, 222 F.Supp. 996 (S.D.Cal.C.D., 1963), (longshoreman injured while working aboard public vessel currently in commission); Hess v. United States, 259 F.2d 285 (9th Cir. 1958), (deceased drowned when a tugboat in which he was riding sank on navigable section of Columbia River in Oregon); United States v. Matson Navigation Co., 201 F.2d 610 (9th Cir. 1953), (ship collided with dike; Admiralty Extension Act, 46 U.S.C. § 740, applied to establish jurisdiction); State of California Department of Fish and Game v. S. S. Bournemouth, 307 F.Supp. 922 (C.D. Cal.1969), (vessel discharged bunker oil while moored in navigable waters; tort held to be "maritime in nature").

At the same time, this Court is greatly impressed by the soundness of reasoning to be found in the arguments of the critics of the "strict locality" rule. Perhaps their arguments have been stated most aptly in Smith v. Guerrant, supra, a case which involved damages to a fork-lift truck which was dropped into navigable waters. The accident occurred when the boom of defendant's shore-based crane collapsed as it was lifting the truck from a jetty up to a dock. In denying admiralty tort jurisdiction, District Judge Noel observed:

"The first Congress created the district courts and gave them exclusive jurisdiction in admiralty cases to permit them to oversee the uniform development of maritime law. At the same time, it recognized that uniformity is not essential in all cases technically within the admiralty and maritime jurisdiction; it therefore provided that cases traditionally litigable under the common law might be tried, at the option of the claimant, in either forum. 28 U.S.C. § 1333(1). Uniformity is desirable where the litigation and the issues to be resolved are related in some fashion to maritime transportation, the industry whose special problems created the need for a specialized branch of the law. Disputes like the present one, which is only incidentally related to navigable waters and wholly unconnected with maritime commerce, can be litigated in the state courts under
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