Three Buoys Houseboat Vacations U.S.A. Ltd. v. Morts

Citation921 F.2d 775
Decision Date21 December 1990
Docket NumberNo. 88-2436,No. MO-3136-AT,MO-3136-AT,88-2436
Parties, 59 USLW 2416 In the Matter of the Complaint of THREE BUOYS HOUSEBOAT VACATIONS U.S.A. LTD., as owners of one 1977 Chriscraft 20' fiberglass vessel, Vessel, for exoneration from or limitation of liability, Appellant, v. Harvey G. MORTS, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Joseph Murphy, St. Louis, Mo., for appellant.

John C. Torjesen, St. Louis, Mo., for appellee.

Before JOHN R. GIBSON and BOWMAN, Circuit Judges, and FLOYD R. GIBSON, Senior Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

After our original opinion in this case, Three Buoys Houseboat Vacations U.S.A., Ltd. v. Morts, 878 F.2d 1096 (8th Cir.1989), was decided, the Appellant applied for certiorari. The Supreme Court granted certiorari, vacated the opinion, and remanded the case for our reconsideration in view of Sisson v. Ruby, --- U.S. ----, 110 S.Ct. 2892, 111 L.Ed.2d 292 (1990). Three Buoys Houseboat Vacations U.S.A., Ltd. v. Morts, --- U.S. ----, 110 S.Ct. 3265, 111 L.Ed.2d 775 (1990).

We have examined Sisson and its Seventh Circuit antecedent, In re Complaint of Sisson, 867 F.2d 341 (7th Cir.1989), and reexamined this case. We find no reason to alter our earlier judgment, except to the extent that it can be said to have relied on the Seventh Circuit's opinion in Sisson, which has been reversed.

I. BACKGROUND

Three Buoys (the Appellant) is in the business of chartering houseboats on the Lake of the Ozarks in Missouri. In the early morning hours of August 2, 1987, a service vessel of Appellant's was sent out on a service call to one of its chartered houseboats. En route, the service boat struck a houseboat that was not chartered from Appellant. Two passengers on the stricken houseboat were killed, three others incurred personal injuries, as did one of Appellant's employees. The Appellant's service vessel sank.

Various claims for wrongful death, personal injury, and property damage were filed against the Appellant and its sunken vessel in the state courts of Missouri. Seeking to avoid full liability, Appellant petitioned the district court 1 for the protections of the Limitation of Liability Act, 46 U.S.C.App. Secs. 181 et seq. (the Act). 2 The Act would allow recovery against the Appellant only in the amount of the salvage value of Appellant's vessel (likely nothing, as it lies at the bottom of the Lake of the Ozarks) or $420 per ton. 46 U.S.C.App. Sec. 183(b) (1988).

The district court concluded that it lacked admiralty jurisdiction, but found that it had jurisdiction under general federal question jurisdiction. However, it ultimately dismissed Appellant's petition for failure to state a claim. The district court found that the Act could only support claims arising from navigable waterways and that the Lake of the Ozarks was not navigable. Thus, the Appellant had not stated a claim. We affirm the district court, but find no subject matter jurisdiction. We again conclude that neither this court nor the district court had jurisdiction under admiralty jurisdiction, federal question jurisdiction, or the Act to entertain this suit.

II. DISCUSSION
A. SISSON 'S IMPACT

Admiralty jurisdiction as to torts requires locality (the situs of the waterway) and nexus (the status of the vessel or activities). Locality is satisfied by a navigable waterway, while nexus is satisfied by a sufficient relationship of the vessel to maritime activities. See Sisson, 110 S.Ct. at 2895. While this case and Sisson both concern admiralty jurisdiction in the federal courts, each addresses a different aspect of that jurisdiction. Most importantly, they involve two very different waterways: Sisson involved Lake Michigan, indisputably a navigable waterway; this case involves the Lake of the Ozarks in Missouri, which we view as not a navigable waterway.

Further, while Sisson delineates admiralty's nexus requirement by explaining the meaning of maritime activities on navigable waterways, it says nothing about what actually constitutes a navigable waterway. That Lake Michigan is a navigable waterway is beyond doubt and was not discussed by the Court. The Lake of the Ozarks, however, is another cup of tea. This case turns only on the question of whether that lake is a navigable waterway for admiralty jurisdiction purposes.

In that regard, the Appellant has urged upon us the Supreme Court's language from Sisson to the effect that navigation is not required to establish a connection to maritime activities--indeed, the vessel in Sisson was docked at a marina on Lake Michigan, and was not navigating. Nevertheless, the court found that the mooring of a ship on a navigable waterway was sufficiently related to maritime activities to trigger admiralty jurisdiction. Sisson, 110 S.Ct. at 2897-98. Thus, the nexus requirement has become rather easily satisfied, and rightly so. It is the navigable waterway question (something of a given with respect to Lake Michigan) that seems more controlling and perhaps the one true determinant of admiralty jurisdiction. See Sisson, 110 S.Ct. at 2898-02 (Scalia, J., concurring).

Yet, the Appellant has ignored the distinction between navigation vis-a-vis the vessel and vis-a-vis the waterway. The whole significance of a waterway as navigable as a precondition to maritime jurisdiction seems lost to the Appellant. In Sisson, the Supreme Court said that navigation was not an essential element of the activities of the vessel to tie into maritime activities, but navigation as to the waterway was not discussed at all. While a vessel may not have to be navigating to be considered engaged in maritime activity, it must be on a navigable waterway. As Justice Scalia suggests, it is the very fact that a vessel is on a navigable waterway at all that creates maritime jurisdiction, and less so the activity of the vessel. Id. at 2901. Answering the question of the vessel's relationship to maritime activities does not answer the question of the waterway's status as navigable.

The two ideas are distinct--there is the waterway and there is the vessel and its activities. While the Appellant has suggested we deny this distinction and use the Supreme Court's analysis of navigation in the nexus-vessel context in our analysis of what is a navigable waterway, we cannot do so. The importance of the existence of a navigable waterway in the first instance is repeatedly brought home by the Supreme Court's recurrent use of the phrase "navigable waterway" to describe admiralty jurisdiction throughout its opinion in Sisson. 3 Hence, we remain confident that our inquiry must first determine if the Lake of the Ozarks is a navigable waterway. Because the Supreme Court has not discussed that factor in Sisson, we readopt our views as expressed in the original panel opinion and briefly reiterate them below.

B. NAVIGABILITY

Navigability is a term subject to different definitions depending upon the context of a case. In some cases the term has a different meaning from that expressed in admiralty cases. See Kaiser Aetna v. United States, 444 U.S. 164, 170-72 and n. 7, 100 S.Ct. 383, 387-89 and n. 7, 62 L.Ed.2d 332 (1979); Livingston v. United States, 627 F.2d 165, 169-70 (8th Cir.1980), cert. denied, 450 U.S. 914, 101 S.Ct. 1354, 67 L.Ed.2d 338 (1981); cf. Minnehaha Creek Watershed Dist. v. Hoffman, 597 F.2d 617, 621-23 (8th Cir.1979) (defining navigable waters for purposes of certain acts of Congress). While there is ample case law describing navigability in contexts which do not concern admiralty, we are concerned with navigability only as it relates to admiralty. Livingston is the most complete statement from this court in that regard.

Thus, despite the criticisms expressed in Finneseth v. Carter, 712 F.2d 1041, 1045 (6th Cir.1983) 4, and until Supreme Court authority to the contrary, Livingston remains the controlling authority in this court for the determination of what is a navigable waterway. The standard is one of "contemporary navigability in fact." Livingston, 627 F.2d at 170; see also Edwards v. Hurtel, 717 F.2d 1204, 1205 (8th Cir.1983) (per curiam), opinion on rhr'g, 724 F.2d 689 (1984) (per curiam); cf. Goodman v. 1973 26 Foot Trojan Vessel, 859 F.2d 71, 73 and n. 3 (8th Cir.1988) (in admiralty contract case as distinguished from admiralty tort cases, court said "[n]avigable waters have a present capacity to sustain commercial shipping.") (citing Livingston, 627 F.2d at 170).

The Appellant suggests there is contrary authority from this court in Loc-Wood Boat & Motors v. Rockwell, 245 F.2d 306 (8th Cir.1957) and George v. Beavark, Inc., 402 F.2d 977 (8th Cir.1968). We do not entirely agree. Neither case directly addressed the admiralty jurisdiction question answered in Livingston. Livingston, 627 F.2d at 168 and n. 4. Thus, Appellant's reliance on those cases, particularly Loc-Wood, cannot help answer the question of what navigability is, which question controls this case.

George contains language to the effect that if a river was navigable prior to the construction of a dam, it is thereafter still considered to be a navigable waterway. George, 402 F.2d at 978. That language, however, is dictum and did not control on the real question necessary for resolution of the case: whether float fishing on the stream in question constituted commerce as to make the stream navigable. Id. To the contrary, the George court actually used the navigability in fact test to reach its conclusion that float fishing alone did "not render the stream navigable in fact[.]" Id. at 981. Further, George pointed out that the navigability in fact standard is an old one, dating back to The Daniel Ball, 77 U.S. (10 Wallace) 557, 19 L.Ed. 999 (1870).

'The test of navigability has frequently been stated by this Court. In The Daniel Ball ... the Court said: "Those rivers must be regarded as public navigable rivers in law which are navigable in fact. ...

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