In re Motor Ship Pacific Carrier

• Decision Date: 08 February 1974
• Docket Number: No. 73-1651.,73-1651.
• Citation: 489 F.2d 152
• Parties: In the Matter of The Complaint of Gypsum Carrier, Inc., Bareboat Charterer, and Oceanic Carrier, Inc., Owner of the MOTOR SHIP PACIFIC CARRIER, for exoneration from or limitation of liability. GYPSUM CARRIER, INC., Third Party Plaintiff-Appellant, v. UNION CAMP CORPORATION, Third Party Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

489 F.2d 152 (1974)

In the Matter of The Complaint of Gypsum Carrier, Inc., Bareboat Charterer, and Oceanic Carrier, Inc., Owner of the MOTOR SHIP PACIFIC CARRIER, for exoneration from or limitation of liability.

GYPSUM CARRIER, INC., Third Party Plaintiff-Appellant, v. UNION CAMP CORPORATION, Third Party Defendant-Appellee.

No. 73-1651.

United States Court of Appeals, Fifth Circuit.

February 8, 1974.

George H. Chamlee, Gustav R. Dubus, III, Savannah, Ga., for Gypsum Carrier, Inc.

Kirk M. McAlpin, Atlanta, Ga., Stanley R. Wright, Jacksonville, Fla., for Union Camp Corp.

Spencer Connerat, Jr., Savannah, Ga., for the Seaboard Coast Line Railroad Co.

Fred S. Clark, Savannah, Ga., Manuel A. Sequeira, Jr., New York City, for Underwriters of Seaboard Coast Line Railroad Co.

Edward T. Brennan, Savannah, Ga., for M/V Mariner & M/V Costos Frange.

W. J. Snowden, Moore-McCormack Lines, Inc., New York City, Courtney W. Stanton, Asst. Atty. Gen. of Ga., Atlanta, Ga., for Ga. Ports Authority.

Thomas S. Gray, Jr., Savannah, Ga., for Hamburg-Suderamerikanische Dampschiffahrts Gesellschaft.

Gignilliat & Abbott, Savannah, Ga., for Aztec Trading Co. S. A.

Julian F. Corish of Corish, Smith, Remler & Moore, Savannah, Ga., for American Oil Co.

Before GEWIN, AINSWORTH and MORGAN, Circuit Judges.

AINSWORTH, Circuit Judge:

The question for decision in this matter is whether there is jurisdiction in admiralty of claims of the bareboat charterer and the owner of a vessel against a shore-based paper mill, engaged in a non-maritime manufacturing activity, on allegations that smoke emitted from the mill so obstructed navigation as to cause the vessel to collide with a railroad bridge spanning the waterway on which it was proceeding to sea.

On April 23, 1971, the M/S PACIFIC CARRIER, owned by Oceanic Carrier, Inc., and under bareboat charter to Gypsum Carrier, Inc., appellants herein, discharged a cargo of gypsum rock at Savannah, Georgia, and was proceeding downstream on the Savannah River ship channel bound for Halifax, Nova Scotia. As the vessel approached a railroad bridge spanning the channel, it suddenly became engulfed in smoke, fumes and gases emanating from the smokestacks of a pulp and paper mill owned by Union Camp Corporation, situated on the bank of the channel immediately upriver from the bridge, causing loss of all visibility by the vessel's crew and resulting in a collision by the vessel with the bridge. Both bridge and vessel sustained heavy damage.

Seaboard Coast Line Railroad Company, owner of the bridge, immediately filed an in rem action for damages against the vessel and caused its seizure. Gypsum Carrier, Inc. thereafter instituted the present exoneration and limitation of liability proceeding (pursuant to 46 U.S.C. §§ 183-189), in which Oceanic Carrier, Inc., the shipowner, intervened. Gypsum and Oceanic later filed in this limitation proceeding a third-party complaint and cross-claim, respectively, under Rule 14(c), Fed.R.Civ.P.,¹ against Union Camp, the allegations contained therein charging that the smoke emitted by the paper mill interfered unreasonably with the vessel's use of the waterway and constituted a nuisance and an obstruction to navigation. In the crossclaim of Oceanic there were further allegations that Union Camp's activities violated the Georgia Air Quality Control Act (Chapter 88-9, Code of Georgia) as well as federal regulations pertaining to navigation lights and signals (33 C.F.R. §§ 68.01-10 et seq.). The acts complained of were said to be the proximate cause of the collision. The parties sought damages and recovery over, and that all judgment of claimants in the limitation proceeding be entered against third-party defendant Union Camp under Rule 14(c), Fed.R.Civ.P.; and Oceanic sought in the event of a finding of mutual fault divided damages in accordance with the admiralty rule.

This appeal arises out of the district court's order sustaining Union Camp's motions to dismiss for lack of admiralty jurisdiction, the third-party complaint and cross-claim of shipowners against it.² An interlocutory appeal was authorized under 28 U.S.C. § 1292.

We have carefully analyzed the order of the district court which dismissed the impleader and cross-claim for lack of admiralty jurisdiction over Union Camp, as well as the two decisions on which the district judge apparently justified his conclusions, namely, Executive Jet Aviation, Inc. v. City of Cleveland, Ohio, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972), and Peytavin v. Government Employees Insurance Company, 5 Cir., 1972, 453 F.2d 1121. In our view, the cited cases not only do not support the conclusion reached by the district court, but to the contrary sustain admiralty jurisdiction herein. Accordingly, we reverse the order of the district court dismissing the impleader and cross-claim of shipowners against Union Camp.

A secondary issue raised below is whether the doctrine of ancillary jurisdiction extends to admiralty as well as to civil impleader so as to dispense with any requirement of an independent basis of admiralty jurisdiction to implead a third party under Rule 14(c), Fed.R. Civ.P. We do not reach this question inasmuch as the maritime nature of the claims herein furnishes the independent basis required for admiralty jurisdiction under the rule.

In Executive Jet, supra, a jet airplane, taking off from an airport adjacent to Lake Erie in Cleveland, Ohio, struck a flock of seagulls, causing it to crash and sink in the navigable waters of nearby Lake Erie. The owners of the airplane brought suit in admiralty for its loss. The question before the Supreme Court was "whether the petitioners' suit for property damage to the aircraft, allegedly caused by the respondents' negligence, lies within federal admiralty jurisdiction." 409 U.S. at 250, 93 S.Ct. at 495. The Court held that it did not, concluding that "maritime locality alone is not a sufficient predicate for admiralty jurisdiction in aviation tort cases," 409 U.S. at 261, 93 S.Ct. at 501, and after a comprehensive discussion of the complexities of problems involved in the application of the strict locality test,³ said further:

"All these and other difficulties that can arise in attempting to apply the locality test of admiralty jurisdiction to aeronautical torts are, of course, attributable to the inherent nature of aircraft. Unlike waterborne vessels, they are not restrained by one-dimensional geographic and physical boundaries. For this elementary reason, we conclude that the mere fact that the alleged wrong `occurs\' or `is located\' on or over navigable waters — whatever that means in an aviation context — is not of itself sufficient to turn an airplane negligence case into a `maritime tort.\' It is far more consistent with the history and purpose of admiralty to require also that the wrong bear a significant relationship to traditional maritime activity. We hold that unless such a relationship exists, claims arising from airplane accidents are not cognizable in admiralty in the absence of legislation to the contrary." (Emphasis supplied.)⁴

409 U.S. at 268, 93 S.Ct. at 504.

The holding in Executive Jet, as indicated from the foregoing language of the opinion, is confined of course to aircraft. Nevertheless, the Court spoke with approval of the increasing tendency of Congress and the courts to predicate maritime jurisdiction generally on the relationship of the wrong to maritime activities instead of on the locality of the tort alone. In this respect it said:

"In sum, there has existed over the years a judicial, legislative, and scholarly recognition that, in determining whether there is admiralty jurisdiction over a particular tort or class of torts, reliance on the relationship of the wrong to traditional maritime activity is often more sensible and more consonant with the purposes of maritime law than is a purely mechanical application of the locality test." (Emphasis supplied.)

409 U.S. at 261, 93 S.Ct. at 501.

As an example of cases holding that admiralty jurisdiction was improperly invoked because the tort, while having a maritime locality, lacked a significant relationship to maritime navigation and commerce, the Court in Executive Jet cited Peytavin v. Government Employees Insurance Company, 5 Cir., 1972, 453 F. 2d 1121, the second case relied on by the district court in dismissing the claims against Union Camp below. In Peytavin, we concluded that a claim for whiplash injuries sustained by an automobile passenger as the result of a rear-end collision with another automobile was not within the jurisdiction of admiralty, notwithstanding the fact that plaintiff's vehicle was parked on a floating pontoon in navigable waters. Our reasoning was that the claim lacked "substantial connection with maritime activities or interests." 453 F.2d at 1127.

Both Executive Jet and Peytavin represent a departure from application of the strict locality rule. They stress substantiality of the connection between the tort and maritime activities as a more realistic criterion. In the instant case, if locality of the tort were the only factor having a maritime connection, admiralty jurisdiction would be lacking. However, the locality of the tort, the Savannah River channel, where the "substance and the consummation of the injury"⁵ presumably occurred, is only one maritime-connected factor. This is not one of those "borderline" problem cases, alluded to in Executive Jet,⁶ devoid of any relationship between the tort and traditional maritime activities other than location. The combination of factors in the instant case, in the context of admiralty jurisdiction, supplies what was lacking in Executive Jet and Peytavin — a substantial maritime connection. Unlike the aircraft in Executive Jet and the colliding automobiles in Peytavin, the motor vessel PACIFIC CARRIER is by its very essence maritime. The alleged cause of its collision with the railroad bridge, i. e., the smoke...