Richardson v. Foremost Ins. Co.

• Decision Date: 02 April 1981
• Docket Number: No. 79-2542,79-2542
• Citation: 641 F.2d 314
• Parties: Pansy F. RICHARDSON, Donald B. Richardson, Patrick S. Richardson, Joseph S. Richardson, Larry S. Richardson, and Carla Richardson, Plaintiffs-Appellants- Cross Appellees, v. FOREMOST INSURANCE COMPANY, Shirley Eliser and June G. Allen, Defendants- Appellees, June G. Allen, Defendant-Appellee-Cross Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 314

641 F.2d 314

Pansy F. RICHARDSON, Donald B. Richardson, Patrick S.

Richardson, Joseph S. Richardson, Larry S.

Richardson, and Carla Richardson, Plaintiffs-Appellants- Cross Appellees, v. FOREMOST INSURANCE COMPANY, Shirley Eliser and June G.

Allen, Defendants- Appellees,

June G. Allen, Defendant-Appellee-Cross Appellant.

No. 79-2542.

United States Court of Appeals, Fifth Circuit.

April 2, 1981.

Roy Maughan, Dorsey C. Martin, III, Baton Rouge, La., for plaintiffs-appellants-cross appellees.

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

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

Appeals from the United States District Court for the Middle District of Louisiana.

Before THORNBERRY, ANDERSON and THOMAS A. CLARK, Circuit Judges.

THOMAS A. CLARK, Circuit Judge:

This is an appeal from the dismissal of plaintiffs' complaint on the ground that it did not state a cause of action that was within the admiralty jurisdiction of the lower court. The incident giving rise to the complaint involved a collision between two pleasure boats on the upper reaches of the Amite River. The district court, 470 F.Supp. 699, reasoned that the facts of the case did not present a sufficient relationship to traditional maritime activity to warrant the extension of admiralty jurisdiction to this litigation. While there is much logic and good sound policy reasons that support the district court's holding, we regretfully conclude that precedent does not permit us to take this far-reaching step. Additionally, there is uniformity in the present rule that admiralty jurisdiction extends to all accidents occurring between surface vessels on navigable waters. The benefits derived from this certainty override the policy considerations advanced by the appellees in support of the district court's ruling.

The accident giving rise to this litigation was between one pleasure boat being used to pull a skier on a "zip sled" and a pleasure boat used for sportfishing but under way at the time. Neither boat had ever been involved in commercial maritime activity. There was no involvement at the time of the accident of any buoy, barge, or underwater obstruction.

The district court concluded that there was a lack of admiralty jurisdiction and defined the issue as follows:

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.

The district court referred to the views of certain text writers in the field ¹ and then examined and relied on three cases that unquestionably control the decision of this case, those being Executive Jet Aviation, Inc. v. City of Cleveland, Ohio, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972), Kelly v. Smith, 485 F.2d 520 (5th Cir. 1973), and Peytavin v. Government Employees Insurance Co., 453 F.2d 1121 (5th Cir. 1972).

Those three cases very simply may be said to hold that admiralty jurisdiction requires more than the occurrence of the tort on navigable waters that additionally there must be a significant relationship between the wrong and traditional maritime activity. Thus, we agree with the district court in the statement of the rule. We differ from the district court in the application of the rule to the facts in this case.

We hold that two boats, regardless of their intended use, purpose, size, and activity, are engaged in traditional maritime activity when a collision between them occurs on navigable waters. We say this because boats, regardless of their size, purpose, and activity, are governed by the same "Rules of the Road" as the largest seagoing vessel when those boats are traversing navigable waters. As such, the owners and operators of the vessels are bound by those rules, and their negligent operation or absence of negligent operation is so governed. We do not find that any of the three cases which are our guideposts require that the maritime activity be an exclusively commercial one. We sympathize with those writers and scholars who strongly believe that admiralty jurisdiction should be limited to only litigation involving commercial activity on navigable waters. We recognize that the Fourth Circuit in Crosson v. Vance, 484 F.2d 840 (4th Cir. 1973), holds otherwise than we do here. We note that the Eighth Circuit in St. Hilaire Moye v. Henderson, 496 F.2d 973 (8th Cir. 1974), has held that admiralty jurisdiction does extend to an accident identical to this. The Seventh Circuit in Chapman v. United States, 575 F.2d 147 (7th Cir. 1978), held that admiralty jurisdiction did not extend in that case because the once navigable waterway is now used only for recreational activities. In footnote 10 the court said: "The reach of admiralty jurisdiction over pleasure boat mishaps occurring in navigable waters used for commercial activity is, of course, not before us." 575 F.2d at 150, n. 10.

Our decision in this case is strongly influenced by the holding in Kelly v. Smith, supra, in which this court stated that "(a)dmiralty has traditionally been concerned with furnishing remedies for those injured while traveling navigable waters." Id. at 526. That case dealt with an unusual factual situation where gunfire was exchanged between occupants of a pleasure boat on the Mississippi River and persons standing on an island. The court placed emphasis on the danger presented by gunfire being directed at a vessel, although a small one, on a major commercial artery. We note a strong dissent in ...