Peytavin v. Government Employees Insurance Company

• Decision Date: 07 January 1972
• Docket Number: No. 71-2225 Summary Calendar.,71-2225 Summary Calendar.
• Citation: 453 F.2d 1121
• Parties: John L. PEYTAVIN, Plaintiff-Appellant, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

453 F.2d 1121 (1972)

John L. PEYTAVIN, Plaintiff-Appellant, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY et al., Defendants-Appellees.

No. 71-2225 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

January 7, 1972.

Lloyd R. Himel, Martin, Himel & Peytavin, Lutcher, La., for plaintiff-appellant.

Frank B. Hayne, III, Hammett, Leake & Hammett, New Orleans, La., for defendants-appellees.

Before GEWIN, GOLDBERG and DYER, Circuit Judges.

GEWIN, Circuit Judge:

Unable to demonstrate diversity jurisdiction, this plaintiff-appellant nevertheless seeks to sue in federal court for whiplash injuries sustained in a rearend car collision by invoking the district court's admiralty jurisdiction under a claim that the defendant's conduct amounted to a maritime tort. In his complaint, John L. Peytavin alleged that he was parked on a floating pontoon at a ferry landing in the Mississippi River waiting in line to obtain a ticket to board the ferry when his car was struck from the rear by a car operated by Mrs. Eva Bourgeois Dufresne. After a hearing on the defendant's motion to dismiss, the court entered an order finding that the floating pontoon on which the accident occurred was an extension of land and dismissing the suit for lack of admiralty jurisdiction. We concur in the court's judgment, although for different reasons, and affirm.¹

This court is aware that the outer edge of admiralty tort jurisdiction has not been charted with precision and that the seaward boundary has fluctuated, as do all waterlines, subject to the ebb and flow tides of judicial opinion.²

Admiralty tort jurisdiction has as its foundation the "strict locality" rule of The Plymouth, 3 Wall 20, 70 U.S. 20, 18 L.Ed. 125 (1866). There the Supreme Court held that admiralty had no jurisdiction of a claim for damages to a wharf by a fire which had started upon a ship and then spread to the shore. The Court found that the jurisdiction of admiralty over maritime tort depends upon locality. However in applying this rule the Court focused narrowly on the location where the damages were inflicted:

The wrong and injury complained of must have been committed wholly upon the high seas of navigable waters, or, at least, the substance and consummation of the same must have taken place upon these waters to be within admiralty jurisdiction. 70 U. S. at 35, 18 L.Ed. at 128.

Because the damage had been inflicted upon land, even though from a clearly maritime source, the Court held the claim was not within admiralty jurisdiction.

This "strict locality rule" has been gradually enfeebled by no less than four modifications or exceptions — two of which have served to expand, and two of which have served to contract admiralty jurisdiction.

At least a crevice developed in the staunch wall of "strict liability" when Mr. Justice Holmes wrote the opinion in The Blackheath, 195 U.S. 361, 25 S.Ct. 46, 49 L.Ed. 236 (1904). The Court held that a claim for damage caused by a ship to a channel light built on piles driven in Mobile Bay was within the court's admiralty jurisdiction, even though the light was realty and not part of the navigable waters. In distinguishing The Plymouth he said:

(In that case) there was nothing maritime in the nature of the tort for which the vessel was attached. The fact that the fire originated on a vessel gave no character to the result . . . Moreover, the damage was done wholly upon the mainland. 195 U.S. at 367, 25 S.Ct. 46, 48, 49 L.Ed. at 238.

This case gave rise to a general exception for damage to fixed navigational aid structures.³

In 1948 the 80th Congress radically altered the strict locality rule of The Plymouth by adopting the Admiralty Extension Act which directed:

The admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land. 46 U.S.C. § 740.

The effect of this act was to reverse the result reached by the Court in The Plymouth.

However, this expansion of admiralty jurisdiction was attended by two doctrines which were applied to constrict the scope of admiralty tort jurisdiction. The first was the "extension of land" doctrine, by which the strict locality requirement that the injury be inflicted upon navigable waters was construed to eliminate from maritime jurisdiction injuries sustained on piers, jetties, bridges, or even ramps or railways running into the sea. T. Smith & Son, Inc. v. Taylor, 276 U.S. 179, 48 S.Ct. 228, 72 L. Ed. 520 (1928).⁴ The second constructive doctrine was the requirement made by some courts that in addition to sustaining injury in a maritime location, the tort must have a "maritime connection." For example, courts have denied maritime jurisdiction of claims arising from alleged injuries to a swimmer who dived off a pier into 18 inches of "navigable water." Chapman v. City of Grosse Pointe Farms, 385 F.2d 962 (6th Cir. 1967).⁵

With such a plethora of rules to choose from, it is not surprising that courts have varied in their views as to the meta-physics of precisely where an injury was sustained or whether a particular structure was "an extension of the land."⁶ There has also been difficulty in distinguishing between matters going to the jurisdiction and those determining the merits or the applicable law. Grant Smith-Porter Ship Co. v. Rohde, 257 U. S. 469, 477, 42 S.Ct. 157, 66 L.Ed. 321, 325 (1922).⁷ In Rohde the Court held that admiralty had jurisdiction of a tort committed on a vessel in the process of construction when lying on navigable waters. But the Court held that in the circumstances, where neither Rohde's general employment as a carpenter, nor his activities at the time of the accident had any direct relation to navigation or commerce, the Oregon Workmen's Compensation Act would apply and abrogate the right to recover damages in an admiralty court which would otherwise exist.

Here the parties contracted with reference to the state statute; their rights and liabilities had no direct relation to navigation, and the application of the local law cannot materially affect any rules of the sea whose uniformity is essential. 257 U.S. at 477, 42 S.Ct. at 158, 66 L.Ed. at 325.

However in Minnie v. Port Huron Terminal Co., 295 U.S. 647, 55 S.Ct. 884, 79 L.Ed. 1631 (1935) where a longshoreman was injured by a cargo sling while standing on the deck of a vessel the court held that admiralty had jurisdiction of the claim and because the employee was injured upon navigable waters while engaged in a maritime service, the claim was to be governed by maritime law. 295 U.S. at 648-649, 55 S.Ct. 884, 79 L.Ed. at 1632.

More recently in Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969), the Supreme Court held that the Death on the High Seas Act did not apply to accidents occurring on artificial island drilling rigs located on the outer Continental Shelf off the Louisiana coast. The Court held that these islands were instead governed by the Outer Continental Shelf Lands Act⁸ which provided that state law remedies which are not inconsistent with other federal law should be applied. In concluding that the Seas Act should not apply to prevent application of the state law remedies, the court noted that under traditional maritime law, there would be no admiralty jurisdiction because the artificial islands would be considered extensions of land, even though surrounded by navigable waters.

The accidents in question here involved no collision with a vessel, and the structures were not navigational aids. They were islands, albeit artificial ones, and the accidents had no more connection with the ordinary stuff of admiralty than do accidents on piers . . . In these circumstances, the Seas Act — which provides an action in admiralty — clearly would not apply under conventional admiralty principles and, since the Lands Act provides an alternative federal remedy through adopted state law, there is no reason to assume that Congress intended to extend those principles to create an admiralty remedy here. 395 U.S. at 360-361, 89 S. Ct. at 1839, 23 L.Ed.2d at 367.

Attempts to apply these traditional principles of admiralty jurisdiction to the present case illustrate the difficulty presented by the present maze rules. The essential facts are undisputed. Peytavin's verified complaint alleges that the Dufresne vehicle proceeded down the ferry ramp and the impact with the plaintiff's car occurred on the east bank Lutcher ferry pontoon. The floating pontoon was used for loading and unloading the ferry; it was securely fastened to the shore by means of two cables.⁹

The district court concluded that the pontoon was an extension of land because it was not a vessel and it was secured to the shore and functioning as a dock or road-way. The court relied on Evansville & Bowling Green Packet Co. v. Chero Cola Bottling Co., 271 U.S. 19, 46 S.Ct. 379, 70 L.Ed. 805 (1926) holding a wharfboat used to transfer freight between steamboats and land, and secured to the shore by four or five cables was not a vessel for purposes of limitation of liability. and on the Court's earlier opinion in Cookmeyer v. Louisiana Dept. of Highways, 309 F.Supp. 881 (E.D.La.1970), aff'd per curiam 433 F.2d 386 (5th Cir. 1970) holding a motorcycle accident on a bridge not to be within admiralty jurisdiction. The court in the instant case indicated that it was significant that the floating pontoon performed no function that might not have been performed as well by an appropriate structure on the land. The court found "little difference between this ferry pontoon and piers or wharves extending over navigable waters which are designed and used for providing access to vessels afloat for people and land based vehicles and equipment."

While we agree with the district court that this automobile accident is not subject to admiralty...