NATIONAL U. FIRE INS. CO. OF PITTS., PA. v. US

• Decision Date: 30 June 1977
• Docket Number: No. 77-3119-NA-CV.,77-3119-NA-CV.
• Citation: 436 F. Supp. 1078
• Parties: NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURG, PENNSYLVANIA v. UNITED STATES of America.
• Court: U.S. District Court — Middle District of Tennessee

436 F. Supp. 1078

NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURG, PENNSYLVANIA v. UNITED STATES of America.

No. 77-3119-NA-CV.

United States District Court, M. D. Tennessee, Nashville Division.

June 30, 1977.

John K. Maddin, Jr., H. Barton Williams, Gracey, Maddin, Cowan & Bird, Nashville, Tenn., for plaintiff.

William H. Farmer, Asst. U. S. Atty, Nashville, Tenn., for defendant.

MEMORANDUM

MORTON, District Judge.

This action is before the court on the motion to dismiss filed by the defendant United States of America ("the Government"). The suit was filed by the plaintiff insurance company as subrogee to the rights of a steel company which suffered water damage to a quantity of its stock stored in a warehouse. The damage resulted from flooding by the Cumberland River. Plaintiff maintains that the Government, through the Army Corps of Engineers, negligently failed to exercise proper flood control procedures in connection with its maintenance of certain dams on the Cumberland. As a result, plaintiff contends, rapidly rising waters inundated a portion of its insured's plant, located on or near the banks of the river.

Plaintiff seeks to bring this suit pursuant to the Suits in Admiralty Act, 46 U.S.C. §§ 741-752, and in particular, under § 742, which provides for a limited waiver of sovereign immunity and sets out the procedure for suits in admiralty against the United States. Although plaintiff has failed to plead a jurisdictional basis, jurisdiction presumably is predicated on 28 U.S.C. § 1333.

Section 742 provides in pertinent part as follows:

"In cases where if such vessel were privately owned or operated, or if such cargo were privately owned or possessed, or if a private person or property were involved, a proceeding in admiralty could be maintained, any appropriate nonjury proceeding in personam may be brought against the United States . . .."

Prior to 1960, § 742 provided only for suits involving "a vessel" or "cargo" owned, operated, or possessed by the United States. The section was amended in that year, however, to include, inter alia, the phrase "or if a private person or property were involved". The intended meaning of that phrase has been the subject of juridical disagreement,¹ but the legislative history² as well as the decided weight of judicial authority³ strongly suggests that the addition of the phrase was intended by Congress as an extension of the statute's waiver of sovereign immunity to all suits sounding in admiralty, not just those involving vessels or cargo. Thus in the instant case, it would appear that the absence of a vessel or a ship's cargo would not ipso facto defeat application of section 742. What must still be determined, however, is whether the injury suffered in this case is one which does in fact sound in admiralty.

The scope of admiralty jurisdiction in the area of torts has traditionally been limited to wrongs committed on the high seas or navigable waters of the United States. Victory Carriers, Inc. v. Law, 404 U.S. 202, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971). Upon this basic jurisdictional principle, often referred to as the strict locality rule, there have been engrafted four modifying doctrines, two of which have generally operated to expand admiralty jurisdiction while the other two have generally operated to constrict it.

The first of these doctrines was enunciated by the Supreme Court in The Blackheath, 195 U.S. 361, 25 S.Ct. 46, 49 L.Ed. 236 (1904), a case involving a collision between a vessel and a beacon resulting in damage to the latter. The beacon was completely surrounded by water, but was attached to the sea floor. Thus, technically, it was a part of the realty under common law and hence outside of admiralty jurisdiction. The court, however, observing the uniquely maritime purpose of the beacon, saw fit to extend admiralty jurisdiction to such a situation. Thus was born what has come to be known as the "damage to fixed navigational aid structures" exception to the strict locality rule. Under this doctrine, a tort involving a structure which is (1) completely surrounded by navigable waters, and (2) an aid to navigation, falls within admiralty jurisdiction.

The other extension of the strict locality rule was legislatively created in 1948 with the enactment of the Admiralty Jurisdiction Extension Act, 46 U.S.C. § 740. What that act in effect provides is that injuries caused by a vessel upon navigable waters, whether the injury is consummated on the water or upon land, are cognizable in admiralty. This law constituted a Congressional response to the Supreme Court's holding in an early case, The Plymouth, 70 U.S. (3 Wall) 20, 18 L.Ed. 125 (1866), where the Court refused to extend admiralty jurisdiction to a case in which a shipboard fire spread to a dock, doing extensive damage.

The Court's refusal in The Plymouth to extend admiralty jurisdiction to dockside injuries illustrates one of the restrictive aspects of the strict locality rule which, absent applicability of the Extension Act, still circumscribes admiralty jurisdiction. Commonly known as the "extension of land" doctrine, this rule denies admiralty jurisdiction to injuries occurring on bridges, piers, docks, jetties, ramps, railways and the like, which, though they may extend over or actually project into and beneath navigable waters, are nonetheless considered so integrated into the mainland that they are treated as a part of it. See, e. g., T. Smith & Son, Inc. v. Taylor, 276 U.S. 179, 48 S.Ct. 228, 72 L.Ed. 520 (1928); Swanson v. Marra Bros., Inc., 328 U.S. 1, 66 S.Ct. 869, 90 L.Ed. 1045 (1946).

The other limitation on the locality rule, which has gained increasing popularity in recent years, is what may be termed the "maritime connection" doctrine. This rule, also referred to as the "locality plus" test, requires that in addition to a maritime locality, the tort at issue must involve or be connected with some maritime activity. In other words, the injury must arise out of some activity traditionally associated with navigation, commerce on the water, or other conduct peculiarly related to maritime affairs, before admiralty jurisdiction can be assumed. This doctrine is not a new one; it was enunciated as early as 1893 by the Ninth Circuit in Campbell v. H. Hackfeld and Co., 125 F. 696 (9th Cir. 1893). It enjoyed a degree of favor in other circuits in the years that followed, see, e. g., Chapman v. City of Grosse Pointe Farms, 385 F.2d 962 (6th Cir. 1967), though it was not universally accepted, see, e. g., Weinstein v. Eastern Air Lines, Inc., 316 F.2d 758 (3d Cir. 1963). In 1972, however, the Supreme Court had occasion to consider the so-called "locality-plus" test and adopted its basic requirement that something more than mere maritime locale was necessary in order to give federal courts admiralty jurisdiction of an airline accident occurring on navigable waters. Executive Jet Aviation v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1973). It thus seems clear, at least in this circuit, in light of the Chapman and Executive Jet decisions, that the "maritime connection" doctrine prevails.

In viewing the facts of the instant case, it is immediately apparent that the two "jurisdiction-expanding" doctrines are inapplicable. Since the property damaged in this case was not in any sense of the term a "navigational aid," the first doctrine discussed above has no pertinence. Similarly, inasmuch as no "vessel" was involved in the complained-of accident, the Extension Act is inapplicable.

The two "jurisdiction-restricting" doctrines, however, require closer examination. The "extension-of-land" doctrine, as stated previously, is of primary importance in cases where the tort occurs on a structure, such as a bridge, ramp, or pier, which may be so erected as to extend over or into navigable waters. In these cases the courts have traditionally withheld admiralty jurisdiction by reference to the strict locality rule, reasoning that the structure, even though surrounded by — and in cases, partially submerged in — water, has a character more terrene in nature than aquatic. References are frequently made to the "purpose and use" of such structures, see, e. g., Hastings v. Mann, 340 F.2d 910, 912 (4th Cir. 1965), cert. denied, 380 U.S. 963, 85 S.Ct. 1106, 14 L.Ed.2d 153, with the suggestion that they are "connected with the shore and immediately concerned with commerce upon land." Cleveland Terminal & Valley R.R. v. Cleveland S.S. Co., 208 U.S. 316, 321, 28 S.Ct. 414, 416, 52 L.Ed. 508 (1908). While the situs of the alleged tort in the instant case — a steel warehouse on or near the shore of a navigable stream — does not fit neatly into the mold of structures usually associated with the extension-of-land doctrine, the principles underlying that doctrine are particularly applicable to the situation in this case. The warehouse in question was built upon the land, perhaps (as in the case of a dock or pier) purposely near the water for facilitating shipment of portions of the steel stored within it. (Indeed, plaintiff suggests just such a possibility on page 2 of its memorandum in opposition to defendant's motion to dismiss). The "purpose and use" of the warehouse were clearly terrestrial, the structure being "immediately concerned with commerce upon land." Indeed, its only arguable connection with the water existed, as suggested above, in a transportation context. Thus, while the instant case presents a "mountain coming to Mohammed" situation in which the river rose to partially inundate the warehouse, rather than the warehouse being purposely constructed over or within the river's natural flow, as in the typical extension-of-land case, the nature of the instant tort is not unlike that in cases where the extension-of-land doctrine is invoked to defeat admiralty jurisdiction.

Another feature which distinguishes this action from most extension-of-land cases is that it is the water...