McGuire v. City of New York

• Decision Date: 30 March 1961
• Citation: 192 F. Supp. 866
• Parties: Mary McGUIRE, Libellant, v. CITY OF NEW YORK, Respondent.
• Court: U.S. District Court — Southern District of New York

192 F. Supp. 866

Mary McGUIRE, Libellant, v. CITY OF NEW YORK, Respondent.

United States District Court S. D. New York.

March 30, 1961.

Edwin M. Bourke, New York City, for libellant.

Charles H. Tenney, Corp. Counsel, New York City, for respondent. James W. Fay, New York City, Meyer Weinstein, Brooklyn, N. Y., of counsel.

DAWSON, District Judge.

Resopondent's exception to the libel in this action raises the question as to whether the admiralty jurisdiction of this court extends to injuries suffered by a bather at a public bathing beach in New York City.

The libellant alleges in her libel that the respondent, The City of New York, owned a public bathing beach known as Midland Beach and invited the libellant to enjoy the waters of such beach in return for payment of a stipulated charge. It alleges that while libellant was lawfully in the waters at said public bathing beach she was caused to sustain an injury to her left hand "when it came into contact with a submerged object that protruded from the bottom."

The libel does not allege the citizenship of libellant. If diversity of citizenship were the basis of the action, there is doubt whether the libel could be sustained. However, libellant's proctor has brought the action as one in admiralty, apparently pursuant to the provisions of § 1333 of Title 28 U.S.C., giving the district courts original jurisdiction of "any civil case of admiralty or maritime jurisdiction."

The exception to the libel is on the ground that the facts averred in the libel do not constitute a cause of action within the admiralty and maritime jurisdiction of this court. This, therefore, presents the very clear question as to whether an injury to a bather at a public bathing beach, occasioned by the negligence of the proprietor of the bathing beach, constitutes a cause of action cognizable in admiralty. Midland Beach, where the accident is alleged to have occurred, is on the edge of Staten Island in New York Harbor. The waters adjacent to Midland Beach may be deemed to be navigable waters, although whether they are navigable, in the ordinarily accepted sense of the word, at the point where a person might be swimming, might be questionable.¹ However, we need not consider that point. The more important question is whether the libel alleges such matters as to allow the action to be brought in admiralty. Libellant takes the position that any tort which occurs in navigable waters is cognizable in admiralty. The Court is unable to agree with this contention.

The Supreme Court has pointed out that "the precise scope of admiralty jurisdiction is not a matter of obvious principle or of very accurate history." The Blackheath, 1904, 195 U.S. 361, 25 S.Ct. 46, 47, 49 L.Ed. 236. The Court recognized that English and French law was the basis of admiralty jurisdiction.

In the ancient French admiralty court, the maritime nature of a dispute was the test of jurisdiction in both contract and tort cases. See French Maritime Ordinances of 1400, 1517 and 1681, found in Cleirac, Us et Coutumes de la Mer, 191 (1788); 1 Valin, Ordonnance de la Marine, 112, 120, 124, 138, 140, 143 (1776). Like the French courts, the English admiralty exercised jurisdiction over all disputes of a maritime nature. 1 Twiss, Black Book of the Admiralty, 68, 69, 83 (1871). Both courts drew on the laws of Oleron as a basic source. See generally, Note, 25 Harv.L.Rev. 381 (1912).

Just before the turn of the century, an English court considered the issue which is directly put in this case. The Queen v. The Judge of the City of London Court, 1892 1 Q.B. 273. The well-reasoned opinion arrived at the following conclusion:

"* * * On what does the jurisdiction of the Admiralty Court depend? It does not depend merely on the fact that something has taken place on the high seas. That it happened there is, no doubt, irrespectively of statute, a necessary condition for the jurisdiction of the Admiralty Court; but there is the further question, what is the subject-matter of that which has happened on the high seas? It is not everything which takes place on the high seas which is within the jurisdiction of the Admiralty Court. A third consideration is, with regard to whom is the jurisdiction asserted? You have to consider three things— the locality, the subject-matter of complaint, and the person with regard to whom the complaint is made. You must consider all these things in determining whether the Admiralty Court has jurisdiction. * * * But, if any of the three matters is wanting, the Admiralty Court may not have jurisdiction." Id. at 294-295.

Soon thereafter, apparently on the authority of The City of London case, the Ninth Circuit reached a similar conclusion. Campbell v. H. Hackfeld & Co., 9 Cir., 1903, 125 F. 696. The Court stated the question as follows:

"The fundamental principle underlying all cases of tort, as well as contract, is that, to bring a case within the jurisdiction of a court of admiralty, maritime relations of some sort must exist, for the all-sufficient reason that the admiralty does not concern itself with non-maritime affairs. * * *" Id. at page 697.²

After reviewing the cases and studying The City of London, the Court concluded:

"In the case of torts, locality remains the test, for the manifest reason that, to give an admiralty court jurisdiction, they must occur in a place where the law maritime prevails. But this is by no means saying that a tort or injury in no way connected with any vessel, or its owner, officers, or crew, although occurring in such a place or territory, is for that reason within the jurisdiction of the admiralty. On the contrary, it is, as has been seen, only of maritime contracts, maritime torts, and maritime injuries of which the United States courts are given admiralty jurisdiction. * *" Id. at page 700.

See generally, 16 Harv.L.Rev. 210 (1903).

While it has been urged that admiralty has jurisdiction over all torts where the wrong takes place on the high seas or other public navigable waters of the United States, this position has not been adopted either by the text writers or by the courts. The basis for admiralty jurisdiction must be a combination of a maritime wrong and a maritime location.³ A maritime wrong generally has been concluded to be one which in some way is involved with shipping or commerce. The locality test was first laid down in The Plymouth, 1866, 3 Wall. 20, 70 U.S. 20, 18 L.Ed. 125, where the Court said in part:

"It is admitted by all the authorities that the jurisdiction of the admiralty over marine torts depends upon locality—the highseas, or other navigable waters within admiralty cognizance. * * *

* * * * * *

"The jurisdiction of the admiralty over maritime torts does not depend upon the wrong having been committed on board the vessel, but upon its having been committed upon the high seas or other navigable waters."

Today the locality test is well established in the law. Kermarec v. Compagnie Generale Transatlantique, 1959, 358 U.S. 625, 628, 79 S.Ct. 406, 3 L.Ed.2d 550; Netherlands American Steam Nav. Co. v. Gallagher, 2 Cir., 1922, 282 F. 171. See Forgione v. United States, 3 Cir., 1953, 202 F.2d 249.

The libellant seeks to use the holding in The Plymouth and the other locality cases to support her contention that any tort occurring on navigable waters is a maritime tort and thus properly within admiralty jurisdiction. She seeks, thereby, to use the locality test as a means of extending admiralty jurisdiction. But this argument is taken out of context. The test was developed as a rule of limitation, as a means of limiting the scope of admiralty jurisdiction. This is made very clear by the Court in The Plymouth itself and later noted in The Blackheath, 1904, 195 U.S. 361, 367, 25 S.Ct. 46, 49 L.Ed. 236. See, Note, 25 Harv.L.Rev. 381 (1912). That the locality test initially was and continues to be a rule of exclusion or limitation, is recognized by the Supreme Court. London Guarantee & Accident Co. v. Industrial Accident Commission, 1929, 279 U. S. 109, 123-124, 49 S.Ct. 296, 73 L.Ed. 632. See Note, 18 Harv.L.Rev. 299 (1905).

The broadly stated principle of The Plymouth has not survived the years unsullied. In 1909, Henry Billings Brown said:

"Whether the word `tort' as thus used includes every act within the common law definition of the word, or is confined to such as are in some way connected with the equipment, navigation or discipline of the ship, has not been judicially decided. The former definition would cover every wrongful act done upon navigable waters, such as an assault by one passenger upon another, or an injury suffered by one through the negligence of another, and make locality the sole test of jurisdiction. The latter would limit it to torts committed by the officers or crew in conducting the navigation or enforcing the discipline of the ship. The broader use is within the letter of the definition, but it may well be doubted whether, for example, a libel or a slander put in circulation on board a ship, could be made the basis of a suit in admiralty. * * *" Brown, Jurisdiction of the Admiralty in Cases of Tort, 9 Colum.L.Rev. 1, 8 (1909).

By 1924 the question was still undecided. Hough, Admiralty Jurisdiction— Of Late Years, 37 Harv.L.Rev. 529, 532 (1924). What has been called "Mr. Benedict's celebrated doubt" has continued through the succeeding editions of Benedict on Admiralty.

"It has nevertheless been doubted whether the civil admiralty jurisdiction, in cases of tort, does not depend upon the relation of the parties to some ship or vessel and embrace only those tortious violations of maritime right and duty which occur in relation to vessels to which the admiralty jurisdiction in cases of contract applies. If one of several landsmen bathing in the sea should assault or imprison or rob another, it has not been held that admiralty would have jurisdiction of an action for the tort." 1 Benedict, op. cit. supra, § 127.

See, Sprague &...