Germain v. Ficarra (In re Germain)

• Decision Date: 01 June 2016
• Docket Number: August Term, 2015,Docket No. 15–665
• Citation: 824 F.3d 258
• Parties: In re Petition of Bruce Germain. Bruce Germain, Petitioner–Appellant, v. Matthew F. Ficarra, Claimant–Appellee.
• Court: U.S. Court of Appeals — Second Circuit

824 F.3d 258

In re Petition of Bruce Germain.

Bruce Germain, Petitioner–Appellant

v.Matthew F. Ficarra, Claimant–Appellee.^*

Docket No. 15–665

August Term, 2015

United States Court of Appeals, Second Circuit.

Argued: February 29, 2016

Decided: June 1, 2016

James E. Mercante, Rubin Fiorella & Friedman LLP, New York, NY, for Petitioner–Appellant.

Jan S. Kublick, McMahan, Kublick & Smith, PC, Syracuse, NY, for Claimant–Appellee.

Before: Katzmann, Chief Judge, Sac k and Lohie r, Circuit Judges.

Katzmann

, Chief Judge:

In broad strokes, this case concerns a tort involving a vessel on navigable waters. More specifically, the case involves a diving accident off a recreational vessel anchored in shallow but navigable lake waters. Before the 1970s, it would have been beyond doubt that such facts would place this case squarely in the jurisdiction of the federal courts, because the traditional test for admiralty tort jurisdiction simply asked whether the tort occurred on navigable waters.

But in 1972, the Supreme Court began refining the situs rule, or locality test, for admiralty tort jurisdiction to weed out “absurd” cases that had little to do with maritime commerce, such as planes crashing into lakes or swimmers colliding into each other. In three subsequent cases, the Court further developed this test, creating a multi-part inquiry designed to address cases at the margin of admiralty jurisdiction. In addition to location, the prevailing test now focuses on whether the incident giving rise to the tort, defined at an “intermediate level of possible generality,” has a “potentially disruptive effect on maritime commerce, and whether the general character of the activity giving rise to the incident bears a substantial relationship to traditional maritime activity.” Tandon v. Captain's Cove Marina of Bridgeport, Inc. , 752 F.3d 239, 247–48 (2d Cir. 2014)

.

Applying this test, the United States District Court for the Northern District of New York (Sannes, J. ) held that admiralty jurisdiction was lacking here. The district court reasoned that a recreational injury occurring on a recreational vessel anchored in a shallow recreational bay of navigable waters could not disrupt maritime commerce and did not bear a sufficient relationship to traditional maritime activity. Although we believe the district court correctly articulated the Supreme Court's modern test for admiralty tort jurisdiction, we respectfully disagree with its conclusion that jurisdiction is lacking here. Indeed, the Supreme Court has instructed us that, “ordinarily,” “every tort involving a vessel on navigable waters falls within the scope of admiralty jurisdiction.” Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co. , 513 U.S. 527, 543, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995)

. Accordingly, we REVERSE and REMAND for further proceedings consistent with this opinion.

Standard of Review

“When reviewing a district court's determination of subject matter jurisdiction pursuant to Rule 12(b)(1), we review factual findings for clear error and legal conclusions de novo .” Tandon , 752 F.3d at 243

(brackets omitted) (quoting Close v. New York , 125 F.3d 31, 35 (2d Cir. 1997) ). “It is ... well established that when the question is subject matter jurisdiction, the court is permitted to rely on information beyond the face of the complaint.” St. Paul Fire & Marine Ins. Co. v. Universal Builders Supply , 409 F.3d 73, 80 (2d Cir. 2005) ; see also

Kamen v. Am. Tel. & Tel. Co. , 791 F.2d 1006, 1011 (2d Cir. 1986) (“[W]hen, as here, subject matter jurisdiction is challenged under Rule 12(b)(1), evidentiary matter may be presented by affidavit or otherwise.”).¹

Factual Background

The district court found that, on July 30, 2011, Petitioner–Appellant Bruce Germain, Claimant–Appellee Matthew Ficarra, and three others left Brewerton, New York, on the shore of Lake Oneida, for an excursion on Germain's 38–foot motor boat, Game Day . See Ficarra v. Germain , 91 F.Supp.3d 309, 312 (N.D.N.Y. 2015)

. Lake Oneida is connected to and part of the New York State Erie Canal System. Id. Using a federal shipping lane, the five headed to the shallow Three Mile Bay, a popular spot for recreational swimming on Lake Oneida that is less than a nautical mile from the federal shipping lane. Id. When Germain, Ficarra, and the three other guests anchored at around 12:30 p.m., the bay was already crowded with other boats. Id.

Around 6:00 p.m., Germain began preparing for the return trip to Brewerton, and Ficarra and the other passengers² began returning to the boat. Id.

At some point while Germain and the other passengers were preparing the vessel for the return trip, Ficarra dived³ off the port side into the water. Id.

Ficarra climbed back on board and entered the water again, this time doing a back flip from the back of the boat that resulted in his striking his head on the lake floor. Id. at 312–13. Germain and others then jumped into the water to assist Ficarra. Id. Local rescue and police boats later arrived at the scene, and they took Ficarra back across Lake Oneida to Brewerton via the federal shipping lane.⁴

Id. at 313. Doctors later determined that Ficarra suffered a serious spinal cord injury causing paralysis and quadriplegia. Id.

Procedural History

On June 16, 2014, Ficarra filed suit against Germain in New York State Supreme Court, asserting claims for negligence under New York law. Ficarra's complaint alleges, among other things, that Germain was negligent for failing: (1) to operate, captain, anchor, maintain, or control his vessel in a safe and reasonably prudent manner to protect the safety and welfare of his boat's passengers; (2) to properly and adequately instruct his passengers on safe boating and diving practices; (3) to properly and adequately inspect the area in which his boat was anchored; and (4) to adequately warn his passengers of the dangerous conditions existing at the time of the aforementioned incident.

On July 17, 2014, Germain removed Ficarra's negligence suit to the United States District Court for the Northern District of New York. On August 18, 2014, Ficarra moved to remand the action back to state court for lack of subject matter jurisdiction, arguing that the claims alleged in his complaint were not within the scope of admiralty jurisdiction.

On August 14, 2014, Germain filed a petition in the United States District Court for the Northern District of New York seeking exoneration from or limitation of liability under the Limitation of Liability Act of 1851, 46 U.S.C. §§ 30501

–12, and Rule F of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions (“Rule F”).⁵ On August 20, 2014, the district court (Kahn, J. ) issued an order in the limitation proceeding directing Germain “to submit a brief explaining why his [petition] should not be dismissed for lack of subject matter jurisdiction.” App. 38. As ordered, Germain filed a brief, affidavit, and related exhibits in support of his limitation petition, and he also filed these same papers in opposition to Ficarra's motion to remand in the separate negligence action.

Both the negligence action and limitation proceeding were then transferred to a different judge on December 29, 2014. In a single memorandum-decision and order, the district court (Sannes, J. ) concluded that Ficarra's claims did not meet the modern test for admiralty tort jurisdiction. See Ficarra , 91 F.Supp.3d at 313–17

.⁶ And because the district court held that it lacked jurisdiction to hear either action, it remanded the negligence suit and dismissed the limitation petition. Id. at 318.

Germain filed notices of appeal in both actions, but he voluntarily withdrew the notice of appeal in the remanded negligence suit, recognizing that, under 28 U.S.C. § 1447(d)

, “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise,” unless the case was removed pursuant to 28 U.S.C. §§ 1442 or 1443. Accordingly, the only appeal presently before us is the district court's dismissal of Germain's limitation petition.

Discussion

The key issue on appeal is whether federal courts have admiralty jurisdiction over claims for injury to a passenger who jumped from a vessel on open navigable waters. They do. But before we reach this question, we must first address Ficarra's primary argument that the present appeal is an improper attack on the district court's remand order. It is not.

I.

Ficarra's primary argument in opposition to Germain's appeal is that Germain's appeal of the limitation petition's dismissal is an improper attack on the district court's remand order, which Germain did not—indeed, could not—appeal. In short, and as discussed in greater detail below, because admiralty cases involving petitions for limitation of liability may proceed on dual tracks in state and federal court, Germain is entitled to appeal the dismissal of his limitation petition.

The Constitution provides that “[t]he judicial Power shall extend ... to all Cases of admiralty and maritime Jurisdiction.” U.S. Const. art. III, § 2. Congress codified this constitutional grant of admiralty and maritime jurisdiction in 28 U.S.C. § 1333(1)

, which provides that “[t]he district courts shall have original jurisdiction, exclusive of the courts of the States, of ... [a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.” The interaction between the exclusivity clause and the saving-to-suitors clause of § 1333(1) has caused much confusion. See, e.g. , Lewis v. Lewis & Clark Marine, Inc. , 531 U.S. 438, 444, 121 S.Ct. 993, 148 L.Ed.2d 931 (2001) (“What the drafters of the Judiciary Act intended in creating the saving to suitors clause is not entirely clear and has been the subject of some debate.”).

Adding to the confusion is a separate statute, the Limitation of Liability Act of 1851, 46 U.S.C. §§ 30505

–12, which Congress enacted “to encourage...