IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-30384
Summary Calendar
_____________________
JAMES C. BARNES, JR.,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
_______________________________________________________
Appeal from the United States District Court for
the Eastern District of Louisiana
(96-CV-1764-1)
_______________________________________________________
September 17, 1997
Before REAVLEY, KING and DAVIS, Circuit Judges.
REAVLEY, Circuit Judge:*
James Barnes appeals the dismissal of his suit against the
United States brought under the Suits in Admiralty Act (SAA)1 and
the Federal Tort Claims Act (FTCA).2 The district court
dismissed the suit for lack of jurisdiction. We affirm.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
46 U.S.C. §§ 741-52.
2
28 U.S.C. §§ 1346(b), 2671-2680.
In 1987 the Coast Guard issued Barnes a five-year license to
operate a vessel of up to 300 tons. In 1990, the license was
upgraded or “endorsed” to allow him to operate vessels of up to
500 tons. Barnes believed that the 1990 endorsement gave him a
license with a term of five years running from the date of the
endorsement, so at the end of 1994 he applied for routine renewal
of his license. The Coast Guard explained that the license had
expired in 1992, charged him in an administrative proceeding with
operating without a license, and eventually issued him a warning.
Barnes claims that the Coast Guard negligently failed to
follow its own regulations and renew his license, and negligently
misrepresented to him that the 500-ton license had a five-year
term running from the date of the 1990 endorsement. As a result
of this alleged negligence, Barnes was, according to his
complaint, forced to reapply for a license, “a process which
required approximately a year of study and testing. During this
period of time, he was for all practical purposes unemployed.”
The district court properly dismissed the FTCA claim because
no formal rejecton was received from the Coast Guard and Barnes
did not wait the full six months, after the filing of his claim,
to file suit in federal court under the FTCA, as that Act
2
requires.3 The district court therefore lacked jurisdiction to
hear the claim.4
The remaining question is whether the district court had
admiralty jurisdiction over the SAA claim. As we have explained,
the SAA does not create any new substantive rights.5 By its
terms it allows suit against the United States where “a
proceeding in admiralty could be maintained” against a private
party.6 Hence, it waives sovereign immunity of the United States
for claims that are otherwise within the admiralty jurisdiction
of the federal courts. Stated another way, it “merely provides a
jurisdictional hook upon which to hang a traditional admiralty
claim. . . . [I]f appellant’s claims are ones which would fall
under general admiralty jurisdiction ‘if a private person or
property were involved’ then, by way of [the SAA], the United
States has waived sovereign immunity as to those claims.”7
This case falls within the federal district court’s
admiralty jurisdiction if a two-part test is met. “[T]he court’s
admiralty jurisdiction will attach in tort cases if the alleged
3
See 28 U.S.C. § 2675(a); Gregory v. Mitchell, 634 F.2d
199, 203-04 (5th Cir. 1981).
4
Id.
5
E.g., Martin v. Miller, 65 F.3d 434, 438 (5th Cir. 1995).
6
46 U.S.C. § 742.
7
Trautman v. Buck Steber, Inc., 693 F.2d 440, 444-45 (5th
Cir. 1982) (quoting 46 U.S.C. § 742).
3
wrong occurs on navigable waters (situs) and bears a significant
relationship to traditional maritime activity (nexus).”8 The
Supreme Court has described the first component of the two-part
test -- the situs or locality test -- as calling on the court to
“determine whether the tort occurred on navigable water or
whether injury suffered on land was caused by a vessel on
navigable water.”9
We agree with the district court that the situs test is not
met. The alleged wrongful conduct and consequences of that
conduct occurred on land. The processing of Barnes’ license
applications was a land-based activity. Barnes conceded that the
Coast Guard’s alleged negligent misrepresentation took place on
land. The injuries Barnes suffered -- loss of income,
unemployment, administrative proceedings and warning from the
Coast Guard, and retesting and reapplication for a new license --
were essentially land-based as well.
We have recognized that land-based activities which
“directly produced a major injury on navigable waters,” as where
a gun was fired on land and injured a plaintiff on a vessel, can
8
Kuehne & Nagel (AG & Co.) v. Geosource, Inc., 874 F.2d
283, 288 (5th Cir. 1989) (emphasis in original); see also
Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249,
268 (1972).
9
Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co.,
513 U.S. 527, 534 (1995).
4
confer admiralty jurisdiction.10 Again, however, we agree with
the district court that the injury here cannot fairly be
described as occurring on navigable waters. The injury, if any,
was imposed on land, and some consequences followed while
plaintiff intended to be afloat.
The most analogous Fifth Circuit case we find in Kuehne &
Nagel. Plaintiff Kuehne & Nagel contracted with an affiliate of
defendant Geosource to transport cargo on land and sea from
Europe to the Middle East. When the cargo could not be unloaded
in Turkey as planned, Kuehne & Nagel sued Geosource, claiming
that Geosource had fraudulently induced Kuehne & Nagel to
contract with its affiliate, and claiming damages consisting of
the costs of making alternative arrangements to transport the
cargo. We concluded that “the injury, if any, that occurred on
navigable waters was too remote from the tortious act to meet the
situs requirement for admiralty jurisdiction,” reasoning that the
alleged misrepresentations inducing the contracts had occurred on
land and that “the misrepresentations had their desired ‘effect’
on land when they prompted Kuehne & Nagel to sign the contracts
of affreightment.”11 The facts of our case are of course quite
different, but employing similar reasoning, the alleged
misrepresentation occurred on land, and the effect of the alleged
10
Kuehne & Nagel, 874 F.2d at 289.
11
Id.
5
misrepresentation occurred on land as well, when Barnes did not
apply for a renewal of his license in 1992 and was forced to
secure a new license.
Barnes cites us to Carroll v. Protection Maritime Ins. Co.12
In that case the plaintiffs, seamen and fishermen, had brought
personal injury claims and claimed the defendant insurance
companies had then tortiously interfered with plaintiffs’
contractual and advantageous business relations, by notifying
vessel owners that the insurers would not insure the plaintiffs
or would only insure them at high premiums. The plaintiffs
claimed that as a result of this “blacklisting” they were
terminated from their jobs and could not obtain new jobs. The
First Circuit held that the tortious interference claims were
within the district court’s admiralty jurisdiction. It reasoned
that the impact of the defendants’ actions “was felt in the
operations of the affected vessels at sea,” and that “[t]he tort
alleged in this case seems to us so interwoven with present and
potential maritime contractual relationships -- traditional
concerns of admiralty -- as to fall within that jurisdiction.”13
The court described its ruling as recognizing an “exception to
the locality test.”14
12
512 F.2d 4 (1st Cir. 1975).
13
Id. at 8-9.
14
Id. at 9.
6
Whether or not Carroll is distinguishable on its facts, it
is not the law of this circuit. Kuehne & Nagel declined to
follow Carroll, and disagreed with Carroll to the extent it holds
that “a party to a contract with strong maritime implications”
need not also “satisfy Executive Jet’s situs requirement when
seeking to predicate jurisdiction on a maritime tort.”15
AFFIRMED.
15
Kuehne & Nagel, 874 F.2d at 289. See also J. Lauritzen
A/S v. Dashwood Shipping, Ltd., 65 F.3d 139, 143 (9th Cir. 1995)
(following Kuehne & Nagle, declining to follow Carroll, and
describing Carroll as against the great weight of case law.)
7