COMPLAINT OF BIRD, 2:92-286-18.

• Decision Date: 01 June 1992
• Docket Number: No. 2:92-286-18.,2:92-286-18.
• Citation: COMPLAINT OF BIRD, 794 F.Supp. 575, 1993 AMC 737 (D. S.C. 1992)
• Court: U.S. District Court — District of South Carolina
• Parties: In the Matter of the Complaint of Benjamin BIRD, as Owner of the VESSEL REALITY for Exoneration from or Limitation of Liability.

794 F. Supp. 575

1993 AMC 737

In the Matter of the Complaint of Benjamin BIRD, as Owner of the VESSEL REALITY for Exoneration from or Limitation of Liability.

No. 2:92-286-18.

United States District Court, D. South Carolina, Charleston Division.

June 1, 1992.

David M. Collins, Charleston, S.C., for plaintiff.

Paul F. Tecklenburg, Charleston, S.C., G. Lance Morris, Greenville, S.C., for defendant.

ORDER

NORTON, District Judge.

This matter is before the court for consideration of claimantHall Eskew's motion to dismiss this action for lack of subject matter jurisdiction.

BACKGROUND

Benjamin Bird is the owner of a thirty-four foot Wellcraft power boat named REALITY.On August 3, 1991, Mr. Bird, Hall Eskew, Gregg Highland, and two unnamed women boarded REALITY for a pleasure voyage.The group anchored the REALITY in the shallow water near a tributary of the North Edisto River and, while the boat was anchored, Mr. Highland allegedly pushed Mr. Eskew overboard, causing Mr. Eskew to suffer injuries.Mr. Eskew notified Mr. Bird that he held him responsible for his injuries because Mr. Bird negligently permitted Mr. Highland to board the vessel even though Mr. Bird knew that Mr. Highland drank excessively and was thus a potential danger to other passengers on the vessel.

After receiving notice of Mr. Eskew's claim, Mr. Bird instituted the instant action for declaratory and injunctive relief pursuant to the Limitation of Liability Act of 1815, 46 U.S.C.App. §§ 183-189.He asserts that this court has maritime tort jurisdiction over this action under 28 U.S.C. § 1333(1).Mr. Eskew, the only known claimant, moves to dismiss this action pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6).

ANALYSIS

Mr. Bird claims that this court has subject matter jurisdiction over this limitation of liability action pursuant to 28 U.S.C. § 1333(1), which grants to federal district courts jurisdiction over cases containing admiralty and maritime claims.Mr. Eskew asserts that this action must be dismissed because this court does not have admiralty jurisdiction under the rules promulgated by the Supreme Court.

A.Legal History

In The Plymouth,70 U.S. (3 Wall.) 20, 18 L.Ed. 125(1865), the Supreme Court clarified the rule to be used by federal courts when determining whether they have admiralty jurisdiction over tort actions.The Court set forth what is commonly referred to as the "locality test" — a bright line rule that conferred upon federal courts admiralty jurisdiction over any tort action in which the tort occurred on the high seas or navigable waters.Id.,70 U.S. (3 Wall.) at 36."According to this test, the border between State tort law jurisdiction and Federal maritime jurisdiction was as easy to trace as the border between the land and the sea."Torres v. City of New York,177 A.D.2d 97, 581 N.Y.S.2d 194, 197(1992).Some courts balked at using the locality test exclusively to determine maritime tort jurisdiction, finding that to do so would create inconsistent and illogical results in some instances.See, e.g., Peytavin v. Gov't Employees Ins. Co.,453 F.2d 1121(5th Cir.1972);Chapman v. City of Grosse Pointe Farms,385 F.2d 962(6th Cir.1967);andCampbell v. H. Hackfeld & Co.,125 F. 696(9th Cir.1903)(where the courts required, in addition to satisfaction of the locality test, satisfaction of a maritime nexus test).

Although the locality test was the subject of much criticism over many years, it was not until 1972, in the case of Executive Jet Aviation, Inc. v. Cleveland,409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454(1972), that the Supreme Court reconsidered the usefulness of the locality rule.In Executive Jet,the Supreme Court declined to rely on the locality test exclusively in determining maritime tort jurisdiction, instead choosing to adopt an additional maritime nexus requirement.Id.

In Executive Jet, an aircraft crashed into the navigable waters of Lake Erie after striking a flock of sea gulls while taking off.The Supreme Court, limiting its ruling to cases involving aviation torts, held that jurisdiction was lacking despite the fact that the crash had taken place in navigable waters because "the wrong did not bear a significant relationship to traditional maritime activity."Executive Jet at 266-68, 93 S.Ct. at 503-04.Although the Court limited its holding to aviation torts, some courts applied the new nexus requirement more broadly.See, e.g., Kelly v. Smith,485 F.2d 520(5th Cir.1973), cert. denied,416 U.S. 969, 94 S.Ct. 1991, 40 L.Ed.2d 558(1974).

Ten years later, in Foremost Ins. Co. v. Richardson,457 U.S. 668, 102 S.Ct. 2654, 73 L.Ed.2d 300(1982), the Supreme Court expanded its holding in Executive Jet in two ways.First, the Court extended its maritime nexus test to encompass all cases involving the determination of maritime tort jurisdiction.Id. at 673-74, 102 S.Ct. at 2657-58.Second, the Court added another prong to the nexus test, holding that the injury must have a potentially disruptive impact on maritime commerce.In so holding, the court emphasized that a substantial relationship with commercial maritime activity is not necessary to a finding of maritime jurisdiction.Id. at 674-75, 102 S.Ct. at 2658.

In Foremost, two pleasure boats collided in navigable waters.Finding admiralty jurisdiction to exist, the Court held that when a "potential hazard to maritime commerce arises out of activity that bears a substantial relationship to traditional maritime activity, ... admiralty jurisdiction is appropriate."Id. at 675 n. 5, 102 S.Ct. at 2658 n. 5.The Court found that navigation of the boats constituted an activity that bore a substantial relationship to traditional maritime activity.Id. at 677, 102 S.Ct. at 2659.

After Foremost was decided, the lower courts struggled with the meaning of the nexus requirement, and some circuits devised their own tests for determining whether the requirement was satisfied.SeeIn re Complaint of Sisson,867 F.2d 341, 345(7th Cir.1989), rev'd,497 U.S. 358, 110 S.Ct. 2892, 111 L.Ed.2d 292(1990)(where the court held that the activity must be commercial or involve navigation in order to satisfy the nexus test) and Kellyat 525(where the court adopted a four-part test to determine whether the nexus requirement is satisfied).In Oman v. Johns Manville Corp.,764 F.2d 224, 230(4th Cir.), cert. denied,474 U.S. 970, 106 S.Ct. 351, 88 L.Ed.2d 319(1985), the Fourth Circuit stated that at a minimum, the four factors developed by the Fifth Circuit in Kelly should be considered when determining whether the nexus requirement is met in a particular case.¹The Kelly factors are: (1) the function and roles of the parties; (2) the types of vehicles and instrumentalities involved; (3) the causation and type of injury; and (4) traditional concepts of the role of admiralty law.

In 1990, the Supreme Court had occasion yet again to clarify its so-called "locality-plus" test.Sisson v. Ruby,497 U.S. 358, 110 S.Ct. 2892, 111 L.Ed.2d 292(1990).In Sisson, a fire started on a noncommercial vessel docked at a marina and spread to other recreational vessels and the marina.No commercial vessels were docked at the marina at the time of the fire.Using Foremost's three-part test, the Court found admiralty jurisdiction to exist.Id.110 S.Ct. at 2898.The Court held that in addition to satisfying the locality requirement, the tort must occur on the navigable waters and the incident must have a potentially disruptive impact on maritime commerce and the activity giving rise to the incident must have a substantial relationship to traditional maritime activity in order to come under federal maritime jurisdiction.Id.

Thus, in essence, the Court merely restated the locality-plus test set forth in Foremost.However, the Court clarified the manner in which the test should be administered.Specifically, the Court directed the lower courts to abandon their fact-specific inquiries under the two-pronged nexus test, and instead make a more general inquiry.The Court held that under the first prong of the nexus test — that the incident must have a potentially disruptive impact on maritime commerce — the potential impact of a given type of incident must be determined by examining its general character.Id.,110 S.Ct. at 2896.This jurisdictional inquiry is not to turn on the actual effects of the incident on maritime commerce, nor the particular facts of the incident that may have rendered the incident more or less likely to disrupt commercial activity.Id."Rather, a court must assess the general features of the type of incident involved to determine whether such an incident is likely to disrupt commercial activity."Id.The Court found that the general features in Sisson — a fire on a vessel docked at a marina on navigable waters—plainly satisfied the requirement of potential disruption to commercial maritime activity.Id.

Likewise, the Court held that when determining whether the second prong of the nexus test is satisfied — that is, the requirement that there be a substantial relationship between the activity giving rise to the incident and traditional maritime activity — courts must define the relevant "activity" by the general conduct from which the incident arose, not by the particular circumstances of the incident.Id.,110 S.Ct. at 2897.The Court explained its reason for requiring a general, rather than fact-specific, inquiry under the second prong as follows:

This focus on the general character of the activity is, indeed, suggested by the nature of the jurisdictional inquiry.Were courts required to focus more particularly on the causes of the harm, they would have to decide to some extent the merits of the causation issue to answer the legally and analytically antecedent jurisdictional question.

Id.The Court went on to find that the relevant activity in Sisson was not the fire, but the storage and maintenance of a vessel at a marina on navigable...