935 F.2d 599 (3rd Cir. 1991), 90-1905, Sinclair v. Soniform, Inc.

Docket Nº:Division, and Ray Murray, Inc., Appellants No. 90-1905.
Citation:935 F.2d 599
Party Name:Terry Lee SINCLAIR v. SONIFORM, INC.; Harsco Corporation; Sherwood Company Division; Hill-Loma, Inc., d/b/a Hill Acme Company; Ray Murray, Inc.; William G. Fryling, individually and d/b/a Blue Water Divers; David S. Madden, Jr.; Glen Hicks, Soniform, Inc., Harsco Corporation, Sherwood Company
Case Date:June 06, 1991
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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935 F.2d 599 (3rd Cir. 1991)

Terry Lee SINCLAIR

v.

SONIFORM, INC.; Harsco Corporation; Sherwood Company

Division; Hill-Loma, Inc., d/b/a Hill Acme Company; Ray

Murray, Inc.; William G. Fryling, individually and d/b/a

Blue Water Divers; David S. Madden, Jr.; Glen Hicks,

Soniform, Inc., Harsco Corporation, Sherwood Company

Division, and Ray Murray, Inc., Appellants No. 90-1905.

Terry Lee SINCLAIR

v.

SONIFORM, INC.; Harsco Corporation; Sherwood Company

Division; Hill-Loma, Inc., d/b/a Hill Acme Company; Ray

Murray, Inc.; William G. Fryling, individually and d/b/a

Blue Water Divers; David S. Madden, Jr.; Glen Hicks,

Glen Hicks, Appellant No. 90-1906.

Nos. 90-1905, 90-1906.

United States Court of Appeals, Third Circuit

June 6, 1991

Argued April 11, 1991.

Page 600

Edward B. Joseph (argued), Goldfein & Joseph, Philadelphia, Pa., for appellants in No. 90-1905, Soniform, Inc., Harsco Corp., Sherwood Corp. Div. and Ray Murray, Inc.

Lawrence D. Wright (argued), Rawle & Henderson, Philadelphia, Pa., for appellant in No. 90-1906, Glen Hicks.

Richard L. Kremnick (argued), Blank, Rome, Comisky & McCauley, Philadelphia, Pa., for appellee Terry Lee Sinclair.

William G. Fryling, pro se.

David S. Madden, Jr., pro se.

Before SLOVITER, Chief Judge, COWEN and GARTH, Circuit Judges.

OPINION

COWEN, Circuit Judge.

The issue before us is whether an action arising from injuries sustained during a scuba diving excursion in navigable waters falls within federal admiralty jurisdiction. Plaintiff Terry Lee Sinclair alleges that he contracted and continues to suffer from the effects of decompression sickness due to a defect in the buoyancy compensator vest he wore while diving, as well as the failure by the crew of the vessel that transported him to the dive site to detect his symptoms and administer proper care. Alleging subject matter jurisdiction in admiralty pursuant to 28 U.S.C. Sec. 1333(1) (1988), Sinclair filed this action in district court against the ship's crew and the manufacturers of the vest. The district court dismissed the action for lack of subject matter jurisdiction.

We hold that Sinclair's claims against the crew fall within federal admiralty jurisdiction since the crew was engaged in a quintessential maritime activity affecting commerce--the transport and care of paying passengers. Because the claims against the manufacturers of the vest arise from the same common nucleus of operative fact as do his claims against the crew, they fall within the district court's supplemental jurisdiction.

I.

On August 16, 1987, Sinclair and three other passengers chartered the Destitute to transport them to a dive site approximately nine miles off the coast of New Jersey. The crew consisted of its owner and captain, David S. Madden, Jr., and a dive master employed by Madden to supervise the dive, Glen Hicks.

After being transported to the dive site, Sinclair and a partner dove to a depth of approximately 75 feet, where they remained for about twenty-seven minutes. As he began to ascend, Sinclair initially used the "finger dump valve" on his buoyancy compensator vest to control the rate of his ascent. Noticing that he was rising faster than his partner, Sinclair pulled the "shoulder dump/rapid exhaust valve" to expel the air from his vest to slow his ascent. The rapid exhaust valve failed, and Sinclair continued to rise at an increasing rate.

Upon reaching the water surface, Sinclair needed assistance to reboard the Destitute. Once aboard, he began to exhibit the symptoms of decompression sickness. Commonly referred to as "the bends," decompression sickness is a disorder caused by the release of nitrogen bubbles in the tissues and blood after returning from high pressure to atmospheric pressure too rapidly. His symptoms included nausea, vomiting, dizziness, and shortness of breath. The crew administered no medical care to Sinclair, continued the dive, and did not transport Sinclair back to shore until two and one-half hours after he surfaced.

Sinclair alleges that he developed and continues to suffer from painful, disfiguring, and disabling injuries attributable to decompression sickness as a result of the defect in his buoyancy compensator vest valve and the failure of the crew to detect his symptoms and administer the appropriate care. He filed actions against the crew of the Destitute and the manufacturers/distributors of the vest 1 in federal district

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court and the Pennsylvania Court of Common Pleas.

The federal action was filed pursuant to the admiralty jurisdiction of the district court under 28 U.S.C. Sec. 1333(1). The district court initially stayed the federal action pending resolution of the state actions, in accordance with a stipulation of the parties. Upon motion by one of the defendants, the district court lifted the stay. Sinclair thereafter moved for dismissal on three grounds: (1) lack of admiralty jurisdiction, (2) voluntary dismissal under Fed.R.Civ.P. 41(a), and (3) his right to pursue a concurrent state remedy...

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