In re Bernstein

• Citation: 81 F.Supp.2d 176
• Decision Date: 28 December 1999
• Docket Number: No. Civ.A. 99-10381-WGY.,Civ.A. 99-10381-WGY.
• Parties: In re the Complaint of Gary BERNSTEIN and Claire Bernstein.
• Court: U.S. District Court — District of Massachusetts

Page 176

81 F.Supp.2d 176

In re the Complaint of Gary BERNSTEIN and Claire Bernstein.

No. Civ.A. 99-10381-WGY.

United States District Court, D. Massachusetts.

December 28, 1999.

Andrew V. Buchsbaum, Julie Pateman-Ward, Healy & Baillie, New York City, Robert E. Collins, Clinton & Muzyka, Boston, MA, for Gary Bernstein, Claire Bernstein.

David F. Anderson, Latti Associates, Boston, MA, for Michael P. Bergeron, II, Lori Bergeron, Michael Bergeron.

MEMORANDUM AND ORDER

YOUNG, Chief Judge.

I. INTRODUCTION

As is not infrequently the case, legislation designed to address and ameliorate a specific issue has consequences far beyond and different than the Congress had intended. See e.g., Andrews-Clarke v. Travelers Ins. Co., 984 F.Supp. 49 (D.Mass. 1997) (detailing the unintended perverse consequences of the Employee Retirement Income Security Act). This is another such case.

On the left corner of the bench in the courtroom where this session of the Court sits there rests a replica of the Silver Oar of Admiralty, the historic symbol of this court's admiralty jurisdiction. See Brainerd Currie, The Silver Oar and All That: A Study of the Romero Case, 27 U.Chi. L.Rev. 1, 77-78 (1959); see also Hark v. Antilles Airboats, Inc., 355 F.Supp. 683, 684 n. 1 (D.Virgin Islands 1973). When the Court sits "in admiralty," the "Silver Oar" is moved to the right corner of the bench. The central question in this case is whether to move the oar, i.e., whether admiralty jurisdiction exists.

Here it is alleged that on August 15, 1997, Sean Kelly was operating a small motorboat owned by the plaintiffs Gary and Claire Bernstein (the "Bernsteins") on Lake Winnisquam in New Hampshire. Kelly, who was pulling Michael P. Bergeron, II behind the motorboat in an inner tube, maneuvered in a manner that caused the motorboat to collide with and seriously injure Bergeron. As a result of his injuries, Bergeron and his parents (collectively, the "Bergerons"), filed suit against the Bernsteins in the Superior Court of Massachusetts. In turn, the Bernsteins filed the present petition under the Shipowner's Limitation of Liability Act, 46 App.U.S.C. § 181 et seq., ("the Act"), in an attempt to limit their liability to the value of the motorboat ($7,000). The suit in the Superior Court has been stayed pending the outcome of this petition. Arguing that this case does not fall under the Court's admiralty jurisdiction, the sole basis of subject matter jurisdiction asserted in the petition, the Bergerons filed a motion to dismiss the petition pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.

II. MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION STANDARD

At the outset of a case, a plaintiff must "establish jurisdiction ... by means of a nonfrivolous assertion of jurisdictional elements ...." Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 537, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995). When such jurisdiction is challenged, "the party invoking subject matter jurisdiction ... has the burden of proving by a preponderance of the evidence the facts supporting jurisdiction." Bank One, Texas N.A. v. Montle, 964 F.2d 48, 50 (1st Cir.1992). Moreover, "any litigation of a contested subject-matter jurisdictional fact issue occurs in comparatively summary procedure before a judge alone...." Jerome B. Grubart, Inc., 513 U.S. at 537-538, 115 S.Ct. 1043. Here the Bernsteins claim that subject matter jurisdiction in admiralty rests on two alternative grounds: (1) the incident took place on the navigable waters of the United States, and (2) even if it did not, the Limitation of Liability Act creates an independent basis for the assertion of admiralty jurisdiction.

III. ANALYSIS OF ADMIRALTY JURISDICTION PREMISED ON NAVIGABLE WATERS

A party seeking to invoke federal admiralty jurisdiction over a tort claim pursuant to 28 U.S.C. § 1333(1)¹ must establish both that the wrong occurred upon the navigable waters of the United States (the "locality test") and that the activity giving rise to the incident had a substantial relationship to traditional maritime activity (the "nexus test"). See Florio v. Olson, 129 F.3d 678, 680 (1st Cir.1997). As the first ground for their motion to dismiss, the Bergerons contend that Lake Winnisquam, the location of the boating accident, is not part of the "navigable waters of the United States" because it is a land-locked lake located entirely within New Hampshire and, "[b]ecause of numerous lockless dams and hydroelectric stations, it is impossible to travel by any type of watercraft from Lake Winnisquam to any other state, to the open ocean, or to any foreign country."² Def.Mem. at 3.

As established by the Supreme Court in 1870, waters are "navigable" for the purposes of federal admiralty tort jurisdiction

when they are used, or are susceptible of being used, in their ordinary condition, as highways of commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. And they constitute navigable waters of the United States ... when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water.

The Daniel Ball, 77 U.S. (10 Wall.) 557, 563, 19 L.Ed. 999 (1870). Although it is not their burden, the Bergerons have effectively established, and the Bernsteins do not deny, that Lake Winnisquam is not "navigable" in its present state. See Report of Captain Nolan. Curiously, however, the Bernsteins argue and present an impressive amount of historical evidence that Lake Winnisquam would be (and indeed was) "navigable" in its "ordinary condition," i.e., in the absence of dams and hydro-electric stations, via Silver Lake and the Winnipesaukee and Merrimack Rivers. See Mower Certification.

While the Bernsteins' historical navigability argument has some basis in the language of The Daniel Ball, the federal courts have held that it is only appropriate to consider the current status of the body of water when determining its "navigable" character for admiralty tort jurisdiction purposes. For example, in the leading case of In re Three Buoys Houseboat Vacations U.S.A. Ltd., 921 F.2d 775, 778-779 (8th Cir.1990) (stating that "[t]he standard is one of `contemporary navigability in fact ...'"), the Eighth Circuit held that a Missouri lake was not navigable because of the existence of a dam and upheld the refusal to exercise federal admiralty jurisdiction over a non-diverse personal injury suit against a charter boat company. Similarly, in Alford v. Appalachian Power Co., 951 F.2d 30, 33 (4th Cir.1991), relying on "the cases [that] hold uniformly that a historical commercial use of a body of water in a configuration predating the creation of the current configuration does not support admiralty jurisdiction ...," the Fourth Circuit held that "a dammed, lockless lake lying wholly within the State of Virginia" was not navigable and upheld the refusal to exercise federal admiralty jurisdiction over a sailboat owner's personal injury claim. See also Adams v. Montana Power Co., 528 F.2d 437, 439-41 (9th Cir. 1975)(dam-obstructed portion of Missouri river located entirely in Montana was not navigable); John F. Baughman, Note, Balancing Commerce, History, and Geography: Defining the Navigable Waters of the United States, 90 Mich.L.Rev. 1028, 1053 (1992) (citing cases and concluding that "waters landlocked in a single state, whether naturally so or because of dams, are not navigable for admiralty purposes.").³ Although the First Circuit has not directly addressed the issue, it has cited Three Buoys and Alford with approval while making passing remarks concerning admiralty jurisdiction. See Acadia Ins. Co. v. McNeil, 116 F.3d 599, 602 n. 4 (1st Cir.1997) ("[C]ourts have held that a landlocked lake within a single state ... lacks sufficient relation to interstate commerce to sustain federal admiralty jurisdiction.").

The Bernsteins' reliance on cases that adopt a historical navigability approach is sorely misplaced. All of the cases adopting the historical approach in the context of admiralty tort jurisdiction have either been overruled or superseded. See Jones v. Duke Power Co., 501 F.Supp. 713, 716 (W.D.N.C.1980) ("[O]nce navigable, always navigable."), overruled by Alford, supra; Complaint of Rowley, 425 F.Supp. 116, 117-18 (D.Idaho 1977) (holding that Lake Couer d'Alene was navigable even though "it is not possible to reach ports of call other than in the State of Idaho without removing the vessel or boat onto land and transporting it to another body of water."), overruled by Adams, supra; Watring v. Unnamed Inboard Motor Boat, 322 F.Supp. 1226 (S.D.W.Va.1971) ("If [r]iver was, in fact, navigable or susceptible of being so used in its natural and ordinary condition ..., the fact that [d]am presently artificially obstructs its navigability would not remove it from admiralty jurisdiction."), overruled by Alford, supra; Madole v. Johnson, 241 F.Supp. 379, 383 (W.D.La.1965) (holding that lake navigable before construction of lockless dams was navigable), superseded by Smith, supra. The Bernsteins likewise cannot rely on those cases that consider historical navigability to delineate Congress' power under the Commerce Clause to regulate interstate waterways⁴ because the Supreme Court has indicated that such rulings should not govern the definition of "navigable waters" for the purposes of federal admiralty tort jurisdiction. See Kaiser Aetna v. United States, 444 U.S. 164, 171, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979) (stating that reliance on "judicial precedent must be predicated upon careful appraisal of the purpose for which the concept of `navigability' was invoked in a particular case.") (internal citation omitted).

In light of overwhelming rejection of the historical...