UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-31161
Summary Calendar
EGOROV, PUCHINSKY, AFANASIEV, & JURING; KAVANAGH & RENDEIRO,
Plaintiffs-Appellants,
VERSUS
TERRIBERRY, CARROLL & YANCEY; JAMES L. SCHUPP, JR.; D. KIRK
BOSWELL; AMBERY MARITIME LTD.; SOUTH PORT SHIPPING AGENCY; THE
U.S. MARSHAL’S SERVICE; THE DIRECTOR OF THE UNITED STATES
MARSHAL’S SERVICE,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
August 13, 1999
Before DAVIS, DUHÉ, and PARKER, Circuit Judges.
PER CURIAM:
Appellants appeal from a summary judgment granted against them
in their suit for, inter alia, tortious interference with a
contract. Finding no error, we affirm.
I.
On May 15, 1996, the vessel M/V PAVLOGRAD was seized pursuant
to state law on behalf of an alleged creditor of the Baltic
Shipping Company (“Baltic”), which owned the vessel. As a result
of the seizure, the Russian crew of the vessel was constructively
discharged from employment without payment of wages and other
obligations.
On May 17, 1996, the Russian law firm of Egorov, Puchinsky,
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Afanasiev & Juring (“Egorov”), was engaged by the crew to represent
them for back wages and penalty wages against Baltic and against
the vessel in rem. Pursuant to the agreement, Egorov was granted
the exclusive right to negotiate a settlement and entitled to a
fifty percent contingency fee on all sums recovered above the face
value of the back wages. The agreement further stated that it
could be terminated by ten (10) days written notice by either
party; however, in the event of termination, Egorov would be
entitled to receive fees based on its hourly rates. Egorov
subsequently retained the firm of Weeks, Kavanagh & Rendeiro
(“Weeks”) to act as local counsel. During this entire time, the
M/V PAVLOGRAD was still under a state writ of attachment. Some
weeks later, the vessel was sold by sheriff’s sale to Ambery
Maritime Ltd. (“Ambery”), who engaged the firm of Terriberry,
Carroll & Yancey (“Terriberry”) to act as their counsel.
After Ambery purchased the vessel, it decided to hire the
Russian crew on board in order to begin employing the vessel. On
Ambery’s instruction, Southport Shipping Agency (“Southport”),
Ambery’s local agent, paid the crew’s outstanding back wages.
Southport did not pay any penalty wages. According to appellants,
Ambery, Terriberry, and Southport conspired together to meet
secretly with the Russian crew and “settle” the matter without
appellants’ knowledge or involvement. Upon payment, the crew
abandoned their outstanding claims for wages and penalties,
discharged Egorov and Weeks, and sailed with the vessel as
employees of the new owner, Ambery. Neither Egorov nor Weeks
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received payment for any legal services pursuant to the agreement,
and therefore brought the instant action alleging, inter alia,
tortious interference by Terriberry and Southport with the
plaintiff’s contract with the Russian crew members of the M/V
PAVLOGRAD. The district court granted summary judgment in favor of
the Appellees, finding that there was no admiralty tort
jurisdiction and that the claims do not pass muster under Louisiana
state law. This appeal followed.
II.
We review a district court’s grant of summary judgment de
novo. See Lavespere v. Niagra Machine & Tool Works, 910 F.2d 167,
177 (5th Cir.1990). Summary judgment is proper when the evidence,
viewed in the light most favorable to the non-movant, reveals that
there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. See
FED.R.CIV.P. 56(c).
Appellants have raised three issues on appeal. First, they
contend that the district court erred in finding that their claims
did not fall under federal admiralty jurisdiction; second, they
argue that they stated valid claims against the U.S. Marshal; and
third, they contend that the district court incorrectly determined
that their claims were not viable under Louisiana state law.
A. Federal Admiralty Jurisdiction
“A party seeking to invoke federal admiralty jurisdiction over
a tort claim must satisfy conditions both of 'location’ and of
'connection’ with maritime activity.” Jerome B. Grubart, Inc. v.
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Great Lakes Dredge and Dock Co., 513 U.S. 527, 531-42, 115 S.Ct.
1043, 1047-53 (1995)(applying the test for determining admiralty
jurisdiction as clarified in Sisson v. Ruby, 497 U.S. 358, 110
S.Ct. 2892, 111 L.Ed.2d 292 (1990)). The district court concluded
that appellants’ claims failed under both prongs of the test.
We will assume without deciding that appellants’ claims have
a sufficient connection with a traditional maritime activity to
satisfy the “connection” prong of the admiralty jurisdiction test.
After careful review of this record and of the supporting law,
however, we conclude that the “location” prong has not been met.
“A court applying the 'location’ test must determine whether
the tort occurred on navigable water or whether injury suffered on
land was caused by a vessel on navigable water.” Grubart, 513 U.S.
at 534, 115 S.Ct. at 1048. In determining whether the tort
occurred on navigable water, this court looks to where the alleged
wrong took effect rather than to the locus of the allegedly
tortious conduct. See Wiedemann & Fransen APLC v. Hollywood
Marine, Inc., 811 F.2d 864 (5th Cir.1987)(quoting Executive Jet
Aviation, Inc. v. City of Cleveland, 409 U.S. 248, 266, 93 S.Ct.
493, 503, 34 L.Ed.2d 454 (1972)); Kuehne & Nagel v. Geosource,
Inc., 874 F.2d 283, 288-89 (5th Cir.1989). Both Wiedemann and
Kuehne involved claims for tortious interference with contract that
were dismissed for lack of admiralty jurisdiction. In both cases,
it was determined that the impact of the tortious interference
would be felt and “take effect” on land where the interfered-with
contracts were to have been performed. Likewise, in this case, the
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alleged tortious interference took effect on land where the
appellants were attempting to perform their contract by recovering
the crew’s back and penalty wages. Like the panel in Wiedemann, we
cannot see how the impact of this alleged tort could have been felt
on navigable waters.
Under an exception to the general rule that the impact of the
tort must be felt on navigable water, the appellants next contend
that the “location” prong has been satisfied because they suffered
an injury on land that was caused by a vessel on navigable water.
This exception was created with the enactment of the Extension of
Admiralty Jurisdiction Act in 1948. 62 STAT. 496 (1948)(current
version at 46 U.S.C. § 740 (1975)).1 By the Act’s express terms,
however, the injury must be caused “by a vessel.” Appellants have
cited Gutierrez v. Waterman S.S. Corp., for the proposition that
“there is no distinction in admiralty between torts committed by
the ship itself and by the ship’s personnel.” 373 U.S. 206, 210,
83 S.Ct. 1185, 1188, 10 L.Ed.2d 297 (1963). However, the situation
in Gutierrez, as well as in the vast majority of other cases in
which admiralty jurisdiction has been predicated on the
“consummated on land” provision of 46 U.S.C. § 740, involved
physical injury or damage done by the vessel. Section 740, by its
1
The Act provides:
The admiralty and maritime jurisdiction of the United
States shall extend to and include all cases of damage or
injury, to person or property, caused by a vessel on
navigable water, notwithstanding that such damage or
injury be done or consummated on land.
46 U.S.C. § 740.
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very terms applies to “damage” and “injuries”. The loss of a
potential recovery of attorney’s fees is not easily analyzed under
section 740. Nonetheless, since Gutierrez, the Supreme Court has
clearly indicated that the Act means the vessel and her
appurtenances, and does not include those performing actions for
the vessel. See Victory Carriers, Inc. v. Law, 404 U.S. 202, 210-
12, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971)(clarifying that
jurisdiction in Gutierrez turned solely on the fact that the injury
was caused by an appurtenance of the ship). Because the complained
of conduct was not caused by the vessel itself or its
appurtenances, appellants’ claims do not fall under the ambit of 46
U.S.C. § 740.
Thus, because the impact of the alleged tort was felt on land
rather than on navigable waters and because the damage was not
caused by the vessel or her appurtenances, the “location” prong of
the admiralty jurisdiction inquiry has not been met. The district
court was correct in granting summary judgment in regards to those
claims dependent on federal admiralty jurisdiction.
B. Jurisdiction over the U.S. Marshal
Because no federal admiralty jurisdiction exists in this case,
appellants’ claims of negligence against the U.S. Marshal Service
cannot be brought under the Suits in Admiralty Act, 46 U.S.C. §
741, et seq. Absent another basis for jurisdiction over these
federal defendants such as the Federal Tort Claims Act (“FTCA”), 28
U.S.C. § 2674, appellants’ claims must be dismissed. Here,
appellants’ failure to file an administrative claim under the FTCA,
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precludes its application. See Montoya v. United States, 841 F.2d
102, 104 (5th Cir.1988). Therefore, the district court was correct
in disposing of these claims by summary judgment.
C. Louisiana State Law
In the absence of admiralty jurisdiction, Louisiana state law
controls the disposition of appellants’ tortious interference
claim. In 1989, the Louisiana Supreme Court for the first time
recognized a very limited cause of action for tortious interference
with contract in the case of 9 to 5 Fashions v. Spurney. 538 So.2d
228 (La.1989). In 9 to 5, the court held:
It is not our intention, however, to adopt whole and
undigested the fully expanded common law doctrine of
interference with contract . . . [i]n the present case we
recognize . . . only a corporate officer’s duty to
refrain from intentional and unjustified interference
with the contractual relation between his employer and a
third person.
Id. at 234. Numerous cases in this Court and various Louisiana
courts of appeal since 9 to 5 have uniformly recognized the
narrowness of Louisiana’s tortious interference action. See, e.g.,
American Waste & Pollution Control Co. v. Browning-Ferris, Inc.,
949 F.2d 1384, 1386-87 (5th Cir.1991); White v. White, 641 So.2d
538, 541 (La.App. 3d Cir.1994); Tallo v. The Stroh Brewery Co.,
544 So.2d 452, 453-55 (La.App. 4th Cir.1989). We recently observed
that even the Louisiana appellate courts purporting to “expand” the
cause of action have done so within the limited confines of 9 to 5.
See America’s Favorite Chicken Co. v. Cajun Enter., 130 F.3d 180,
184 (5th Cir.1997); see also Guilbeaux v. The Times of Acadiana,
693 So.2d 1183, 1186 (La.App. 3d Cir.1997); Neel v. Citrus Lands of
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Louisiana, Inc., 629 So.2d 1299, 1301 (La.App. 4th Cir.1993).
Here, there have been no allegations of a corporate officer
intentionally and unjustifiably interfering with a contract between
his corporate employer and the appellants. Indeed, appellants have
failed to identify an individualized duty existing between
themselves and their alleged tortfeasors that could give rise to
the type of delictual liability established by the Louisiana
Supreme Court in 9 to 5.2 Therefore, because appellants’
allegations do not fall within the narrow parameters of Louisiana’s
tortious interference cause of action, their claims were properly
disposed of in summary judgment.
III.
For the foregoing reasons, the summary judgment granted by the
district court is AFFIRMED.
2
We decline to expand the list of protected duties encompassed by
9 to 5 to include those owed by Louisiana lawyers generally under
the Louisiana Rules of Professional Conduct.
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