State of Maryland, Dept. of N. Res. v. Amerada Hess Corp.

• Decision Date: 22 September 1972
• Docket Number: Civ. No. 72-101.
• Parties: STATE OF MARYLAND, DEPARTMENT OF NATURAL RESOURCES, and Maryland Port Administration v. AMERADA HESS CORPORATION, a Delaware corporation and Harp Tankers Corporation, a Foreign corporation
• Court: U.S. District Court — District of Maryland

350 F. Supp. 1060

STATE OF MARYLAND, DEPARTMENT OF NATURAL RESOURCES, and Maryland Port Administration v. AMERADA HESS CORPORATION, a Delaware corporation and Harp Tankers Corporation, a Foreign corporation

Civ. No. 72-101.

United States District Court, D. Maryland.

September 22, 1972.

Francis B. Burch, Atty. Gen., for Maryland Port Administration, Baltimore, Md., Warren K. Rich, Special Asst. Atty. Gen., Dept. of Natural Resources, Annapolis, Md., for plaintiff.

Joseph H. H. Kaplan, Benjamin Rosenberg, and William Giacofci, Baltimore, Md., for defendant Amerada Hess Corp.

Richard R. Jackson, Jr., and Robert V. Barton, Jr., Baltimore, Md., for defendant Harp Tanker Corp.

HERBERT F. MURRAY, District Judge.

The State of Maryland, Department of Natural Resources, and Maryland Port Administration ("State"), plaintiff herein, has brought suit against the Amerada Hess Corporation and the Harp Tanker Corporation to recover damages incurred as a result of an oil discharge into the Baltimore Harbor. The complaint alleges that on or about April 15, 1970, The S.S. Kadmos, Lloyds Registry Number 517826, a vessel owned by the Harp Tanker Corporation, was in the process of unloading oil at the Amerada Hess Corporation plant located at 6200 Pennington Avenue, Baltimore, Maryland. While the S.S. Kadmos was moored to a pier operated by the Amerada Hess Corporation, the transfer line between the vessel and the shore terminal ruptured, thereby discharging oil into the waters of the Baltimore Harbor. Plaintiff seeks relief in the form of damages to compensate for injury to the waters arising out of pollution to said waters and for costs of abatement. Jurisdiction is invoked pursuant to the admiralty and maritime jurisdiction of the federal courts.

Amerada Hess Corporation ("Amerada Hess") has filed a motion to dismiss, pursuant to Rule 12(b) of The Federal Rules of Civil Procedure, and as grounds therefor has alleged:

1. That this is not a case of admiralty and maritime jurisdiction under 28 U.S.C. § 1333.

2. That the State of Maryland does not have a property interest in the waters of the State and therefore cannot sue for damages to the condition or quality of the water.¹

3. That the oil spill is so transient a condition as to not constitute a public nuisance as is alleged in Paragraph 6 of Count 1.²

4. That the alleged acts of Amerada Hess Corporation complained of took place prior to the enactment of Article 96A, §§ 29B and 29D, Annotated Code of Maryland, which therefore are not, as contended by the plaintiff in Paragraphs 2 and 3 of Count II, applicable to the instant suit.

Harp Tanker Corporation ("Harp Tanker") has also filed a motion to dismiss and has alleged the following:

1. That the State of Maryland does not have a property interest in the waters of the State and therefore cannot claim damages for injury to the condition and quality thereof.³

2. That the oil spill is so transient a condition as to not constitute a public nuisance as is alleged in Paragraph 6 of Count III.⁴

3. That the alleged acts of Harp Tanker Corporation complained of occurred before the enactment of Article 96A, §§ 29B and 29D, Annotated Code of Maryland, and therefore are not, as contended by plaintiff in Paragraphs 2 and 3 of Count IV, applicable to the instant suit.

4. Harp Tanker Corporation owes no duty to the plaintiff to provide a seaworthy vessel.⁵

Having considered all the memoranda filed by the parties and heard oral argument on the defendants' motions to dismiss, the Court will now proceed to the legal issues raised in the motions to dismiss.

JURISDICTION

Each count of the complaint alleges that this is a case of admiralty and maritime jurisdiction. Amerada Hess, in its motion to dismiss, contends that the alleged wrongdoing of Amerada Hess Corporation occurred, if at all, on a shore facility, and the complaint, therefore, does not allege a maritime tort which would give rise to admiralty jurisdiction under 28 U.S.C. § 1333.⁶

The Constitution of the United States, Article III, Section 2, provides that the judicial power of the United States shall extend to "all Cases of admiralty and maritime Jurisdiction." Statutory implementation of this constitutional grant was enacted by Congress in Section 9 of the Judiciary Act of 1789, whose modern counterpart is codified in 28 U.S.C. § 1333. Since 1789, the courts have attempted to delineate the boundaries of this broad grant of jurisdiction by a process of judicial inclusion and exclusion on a case by case basis. The case at bar presents one more instance where a federal district court is required to decide whether a particular set of facts is such as to come within the court's admiralty and maritime jurisdiction.

In the early leading case of De Lovio v. Boit, 7 F.Cas. 418, (No. 3,776) (C.C. D.Mass.1815), Justice Story concluded that the jurisdiction:

"Comprehends all maritime contracts, torts, and injuries. The latter branch is necessarily bounded by locality; the former extends over all contracts, (wheresoever they may be made or executed, or whatsoever may be the form of the stipulations,) which relate to the navigation, business or commerce of the sea. * * *" 7 Fed.Cas. at p. 444.

Later cases follow Justice Story's lead in holding that the critical factor in determining whether a tort claim comes within the broad grant of admiralty jurisdiction is the situs of the tort:

"Everyone agrees that `the locality of the tort' controls the issue of admiralty jurisdiction in such a case as this; if the tort occurred on or in navigable waters⁷ the maritime law applies; if the tort occurred on land it does not apply. * * *" Thomson v. Chesapeake Yacht Club, Inc., 255 F.Supp. 555 (D.Md.1965).

The "locality test" was applied as early as 1865 in the landmark case of The Plymouth, 70 U.S. (3 Wall.) 20, 36, 18 L.Ed. 125 (1865), and has been consistently reiterated by the courts. See, e. g., Weinstein v. Eastern Airlines, Inc., 316 F.2d 758, 761 (3d Cir. 1963), and the cases collected therein. "Admiralty jurisdiction extends to every species of tort committed upon the high seas or on navigable waters." United States v. Matson Nav. Co., 201 F.2d 610, 613 (9th Cir. 1953) (emphasis added). It follows, therefore, that when a court is confronted with an alleged admiralty tort claim, the initial question it must decide is whether the alleged tort occurred upon the high seas or on navigable waters. If it did, the court would have jurisdiction to entertain the suit. If, on the other hand, the tort is found to have occurred on land, the case must be dismissed for lack of subject matter jurisdiction.

In McCall v. Susquehanna Electric Company, 278 F.Supp. 209 (D.Md.1968), the proper application of the locality test was said to be the following:

"In applying the `locality' test for admiralty jurisdiction over torts it is not the place where the negligent acts occur that is all important, but rather the place where the tort occurs.

"A tort is deemed to occur not where the wrongful act or omission has its inception, but where the impact of the act or omission produces such injury as to give rise to a cause of action. Thomson v. Chesapeake Yacht Club, Inc., 255 F.Supp. 555 (D. Md.1965). Without an injury there is no cause of action, no tort, but only `damnum absque injuria.' Hough v. Western Transp. Co., supra, 3 Wall. at 36, 70 U.S. at 36, 18 L.Ed. 125." 278 F.Supp. at 211 (emphasis added).

Accord, Wilson v. Transocean Airlines, 121 F.Supp. 85, 92 (N.D.Cal.1954).

In McCall admiralty jurisdiction was found to exist when a floodgate in a dam was opened and allegedly caused the drowning of the decedent who was fishing in a small boat about one-quarter of a mile below the dam. Defendants in McCall argued that since the alleged act of negligence took place on land, there could be no admiralty jurisdiction. The court rejected this argument and ruled that the place of the injury controlled: "It is of little significance that the acts complained of had a land-based origin. * * * The tort alleged in the complaint occurred on navigable waters and consequently is a maritime tort." 278 F.Supp. at 211.

Applying the locality test to the present case, this Court has jurisdiction to entertain this suit. Assuming arguendo that the alleged negligence occurred on the shore facility of Amerada Hess, no tort arose until the oil entered the waters of Baltimore harbor. For, in this type of case, the tort takes place not where the negligent act occurs but rather where the act or omission becomes operative or effective.⁸ In the instant case, although the allegedly negligent act occurred on land when the pipeline parted from the shore facility, the tort did not arise until the oil polluted the waters of the State. Thus, the act or omission which operated to produce the injury and gave rise to a cause of action occurred on the navigable waters of the State and consequently vested this Court with admiralty jurisdiction.

Amerada Hess seeks to avoid this result by taking the position that admiralty jurisdiction over cases of tort depends not only upon the locus of the tort, but upon a finding of some maritime connection or nexus with the alleged wrong. In other words, it is the contention of Amerada Hess that the tort must have a maritime "flavor" and that the locality test should not be the exclusive test of admiralty jurisdiction in matters of tort. Although this approach has been taken by some courts,⁹ "the weight of authority is clearly to the effect that locality alone determines whether or not a tort claim is within the admiralty jurisdiction." Weinstein v. Eastern Airlines, Inc., supra 316 F.2d at 763.

In Wilson v. Transocean Airlines, 121 F.Supp. 85 (N.D.Cal.1954), it was held:

"Admiralty tort jurisdiction has never depended upon the nature of the tort or how it came about, but upon the locality where it occurred. * * * Locality has remained the sole test of admiralty tort jurisdiction despite recurring

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