Richardson v. Foremost Ins. Co.

• Decision Date: 23 May 1979
• Docket Number: Civ. A. No. 76-280.
• Citation: 470 F. Supp. 699
• Parties: Pansy F. RICHARDSON, Donald B. Richardson, Patrick S. Richardson, Joseph S. Richardson, Larry S. Richardson, and Carla Richardson v. FOREMOST INSURANCE COMPANY, Shirley Eliser and June G. Allen.
• Court: U.S. District Court — Middle District of Louisiana

470 F. Supp. 699

Pansy F. RICHARDSON, Donald B. Richardson, Patrick S. Richardson, Joseph S. Richardson, Larry S. Richardson, and Carla Richardson v. FOREMOST INSURANCE COMPANY, Shirley Eliser and June G. Allen.

Civ. A. No. 76-280.

United States District Court, M. D. Louisiana.

May 23, 1979.

Roy Maughan, Maughan, Atkinson & Martin, Ltd., Baton Rouge, La., for plaintiffs.

Arthur H. Andrews, Franklin, Moore & Walsh, Baton Rouge, La., for Foremost Ins. Co. and Shirley Eliser.

Victor L. Marcello, Talbot, Sotile, Carmouche, Waguespack & Marchand, Donaldsonville, La., for June G. Allen.

E. GORDON WEST, District Judge:

The sole issue before the court is whether or not, under the admitted facts in this case, this court is vested with "admiralty jurisdiction." The incident giving rise to this litigation involved a collision between two "pleasure" boats. One was an eighteen foot pleasure boat powered by a 185 h.p. Johnson outboard motor that was being used for water skiing purposes at the time of the accident. The other was a sixteen foot "bass boat" powered by an outboard motor that was used exclusively for pleasure fishing. At the time of the accident the two boats were headed in opposite directions on the Amite River. The point of impact was in a curve some one-half to three-quarters of a mile downstream from the French Settlement bridge. The bass boat was proceeding northward and apparently made a left turn into the path of the southbound ski boat.

Assuming, for the purpose of this opinion, that the Amite River, at the point of collision, is "navigable", the dispositive issue, in this case, is whether or not there is a "sufficient relationship to traditional maritime activity" to warrant the extension of admiralty jurisdiction to this litigation.

For the reasons hereinafter set forth, we conclude that under the facts of this case this court is not vested with admiralty jurisdiction.

The following facts are undisputed:

(1) One boat was used for pleasure boating, such as boat riding and water skiing, and at the time of the accident the boat was actually pulling a skier on a zip sled;

(2) The other boat was used exclusively for pleasure fishing and was described as a bass boat;

(3) Neither boat had ever been used in any "commercial maritime activity" before the accident;

(4) At the time of the accident neither boat was involved in any "commercial maritime activity" of any sort;

(5) Neither of the two drivers of the boat were being paid to operate the boat nor was this activity in any way a part of their regular type of employment;

(6) None of the passengers on either boat were engaged in any kind of "traditional maritime activity" either before or at the time of the accident;

(7) Neither of the boats involved were under hire in any traditional maritime form;

(8) There is no evidence to indicate that any "commercial activity", even in the broadest admiralty sense, had ever been previously engaged in by either of the boats in question, and in fact the two boats would have to be classified as "purely pleasure craft", not in any way "involved in commerce"; and,

(9) There was no other instrumentality involved in this accident that had even a minor relationship to "admiralty" or "commerce", i. e. a buoy, barge, oil drilling apparatus, etc.

In short, this case squarely presents the factual issue of whether or not "admiralty jurisdiction" must be extended to an accident occurring between two pleasure boats in the purest sense of the word, and in which there is absolutely no "commercial" or "traditional maritime activity" whatsoever involved.

In our analysis it must first be noted that some of the most respected admiralty commentators lean heavily toward the stand now taken by this court that this particular case is not one which was meant to be covered by the admiralty jurisdiction of the federal courts.

Professors Gilmore and Black state the following in their treatise, The Law of Admiralty, Second Edition:

"The following are doubtful areas, (for invoking admiralty jurisdiction) where generalization is dangerous:

Torts occurring on navigable waters, but having no other maritime connection." (The Law of Admiralty, Second Edition, pp. 27, 28; parenthesis added)

However, Professors Gilmore and Black do not stop here. Their treatise contains numerous quotes aimed at the very heart of this case at bar; such as:

"In the main, the outlines of the jurisdiction seem to have been pretty well drawn. Its evaluation requires the balancing of two factors pulling in opposite directions. First, if there is any sense at all in having a separate basis for admiralty jurisdiction in the federal courts, it must be because there is a federal interest that can best be implemented by thus dealing with the major concerns of the shipping industry — with all of them, and not just with a few of them selected on antiquarian criteria."

"Whether a given inclusion within or exclusion from the jurisdiction is warranted must depend on the general sense and policy of having the jurisdiction at all. It is hard to think of any better reason for having this jurisdiction than its aptness for providing a special-industry court for the maritime industry. If this is right, then some modern decisions wander far off the mark. One thinks of the cases bringing airplane accidents within the jurisdiction, just because the plane happens to crash on navigable waters, and the inclusion of such mishaps as surfboard accidents, or motorboat accidents on lakes substantially landlocked. Happily, these cases have (to some not yet certain extent) been overruled, at the highest level. It may be hoped that this overruling is thoroughly general . .. Ideally, the jurisdiction out (sic) to include those and only those things principally connected with maritime transportation. Summarily, the lower courts have been over-inclusive as to torts, and under-inclusive as to contracts." (The Law of Admiralty, Second Edition, pp. 29-31; emphasis added)

Benedict on Admiralty, Seventh Edition (Revised), is another important treatise in which several selected quotes would strongly indicate that the particular facts in this case do not merit the extension of admiralty jurisdiction:

". . . maritime law is not a monistic system. Where, although a matter is maritime, there may be overwhelming considerations requiring state regulation and if such state law does not disturb the general uniformity of maritime law, its application to cases `maritime but local' will be valid. It is not always easy in borderline cases to determine how the accommodation between state and federal concern should be made. One distinction appears to be that where obligations are imposed by virtue of the authority of state or Federal government, the court must attempt to balance the interests, but where the obligations are assumed voluntarily, as in a contract, they ought to be judged by the law applying to the real nature of the transaction." (Benedict on Admiralty, Seventh Edition (Revised) Section 127, pp. 8-47 thru 8-49)

Louisiana, with its roots sunk deeply into the maritime arena, has been one of the leading states in the molding and shaping of the constraints of admiralty jurisdiction. In a recently published book on this subject several noted Louisiana attorneys spoke about the factual situation which now presents itself to this court:

"The second constructive reduction of the admiralty jurisdiction is the requirement of a maritime connection along with the locus of the accident to support maritime jurisdiction. . . . The court mentioned that in the Fifth Circuit's decision in Watts v. Zapata Offshore Co., it had been said that only minimal maritime connection was required once you had the sufficient maritime locus.

"What, then, were the considerations of whether there was sufficient maritime connection for this accident? The Peytavin court, in finding there was not sufficient maritime connection in that case pointed out that neither the parties, nor the nature, nor the apparent cause of the accident, nor the injury sustained demonstrated any further connection with maritime interests. It is necessary to keep in mind what considerations are involved in the determination of "maritime connections."

"As a result, now not only do you have to have the locus, you need the pure maritime connection for admiralty jurisdiction.

"The district courts are going to have a struggle too, because it would appear that they must now come to grips with something previously unheard of: maritime connexity as an adjunct to the locus theory." (Recent Development in the Law of Maritime Torts, edited by Boland and Dodd; pp. 22-26 (1972))

The foregoing analysis leads us directly to two cases which must be closely examined by this court. Executive Jet Aviation, Inc. v. City of Cleveland, Ohio, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454, 1973 AMC 1 (1972); and Kelly v. Smith, 485 F.2d 520, 1973 AMC 2478 (CA 5-1973).

In Executive Jet the United States Supreme Court recognized the time honored rule that the "locality" of the wrong was traditionally the deciding point in whether or not admiralty jurisdiction was present. However, in an in-depth review of prior jurisprudence the court recalled some serious difficulties with the blind application of the locality test. Based on this the court stated:

"In sum, there has existed over the years a judicial, legislative, and scholarly recognition that, in determining whether there is admiralty jurisdiction over a particular tort or class of torts, reliance on the relationship of the wrong to traditional maritime activity is often more sensible and more consonant with the purposes of maritime law than is a purely mechanical application of the locality test." (93 S.Ct. at 501)

Of course, Executive Jet dealt with an aircraft accident. This is not the situation in the case at bar. However, the principles of Executive Jet, and more importantly its progeny, will have an impact on this case.

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