13‐461
Tandon v. Ulbrick
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_______________
August Term, 2013
(Argued: January 13, 2014 Decided: May 19, 2014)
Docket No. 13‐461
_______________
SAPNA TANDON and ROBERT DOOHAN, III,
as owners and/or owners pro hac vice of a 2005 39ʹ Outer Limits motor vessel,
Petitioners‐Appellants,
—v.—
CAPTAIN’S COVE MARINA OF BRIDGEPORT, INC., JILL WILLIAMS, KAYE ANTHONY
WILLIAMS, BRUCE WILLIAMS, THE RESTAURANT AT CAPTAIN’S COVE INC., AKA
RESTAURANT AT CAPTAIN’S COVE, and RYAN ULBRICK,
Claimants‐Appellees,
FRANK GENNA, DONNA GENNA, MICHAEL HERMANN, and ROBERT BARBIERI,
Third‐Party Defendants–Appellees.*
_______________
*
The Clerk of the Court is respectfully directed to amend the official caption to
conform with that above.
Before :
KATZMANN, Chief Judge, LIVINGSTON, Circuit Judge, and CARTER, District Judge.**
_______________
Appeal from a judgment entered on January 7, 2013, by the United States
District Court for the District of Connecticut (Hall, J.) pursuant to a decision and
order entered by that court on December 21, 2012, dismissing the action for lack
of subject matter jurisdiction. We hold that federal admiralty jurisdiction does
not extend to tort claims arising from a physical altercation among recreational
visitors on and around a permanent dock surrounded by navigable water,
because such an altercation does not have a potentially disruptive effect on
maritime commerce. Accordingly, the district court’s judgment is AFFIRMED.
_______________
JAMES E. MERCANTE (Keith A. Brady, on the brief), Rubin Fiorella &
Friedman LLP, New York, NY, for Petitioners‐Appellants.
LAWRENCE B. BRENNAN (Andrea C. Sisca and Samuel I. Reich, on
the brief), Wilson Elser Moskowitz Edelman & Dicker LLP,
Stamford, CT, for Claimant‐Appellee Ryan Ulbrick.
_______________
**
The Honorable Andrew L. Carter, Jr., United States District Judge for the
Southern District of New York, sitting by designation.
2
KATZMANN, Chief Judge:
This case calls upon us to determine whether federal admiralty jurisdiction
extends to tort claims arising from a physical altercation among recreational
visitors on and around a permanent dock surrounded by navigable water. We
hold that federal admiralty jurisdiction does not reach the claims at issue here,
because this type of incident does not have a potentially disruptive effect on
maritime commerce.
Petitioners‐Appellants Sapna Tandon and Robert Doohan, III, are the
owners of the Up and Over, a thirty‐nine‐foot fiberglass powerboat designed for
recreational purposes. On May 28, 2010, visitors on the Up and Over were
involved in a fistfight on a floating dock operated by Claimant‐Appellee
Captain’s Cove Marina of Bridgeport, Inc. (“Captain’s Cove”). At least one
person was seriously injured in the fight. Tandon and Doohan subsequently filed
a petition for limitation of liability1 in the United States District Court for the
1
In 1966, the procedural rules governing federal civil cases and federal admiralty
cases were unified, and the former Federal Rules of Practice in Admiralty and Maritime
Cases were superseded by the Supplemental Rules for Admiralty or Maritime Claims
and Asset Forfeiture Actions (“Supp. R.”). See Supp. R. Rule A, 1966 advisory
committee’s note. As part of this unification, the Supplemental Rules adopted certain
terminology from the Federal Rules of Civil Procedure; they refer to a “complaint” for
limitation of liability, and they call the person filing that pleading a “plaintiff.” In order
to minimize confusion, we adhere to the more common practice of using the terms
“petition” and “petitioner.” See 3 Benedict on Admiralty § 1 (7th ed. rev. 2009).
3
District of Connecticut (Hall, J.), seeking to limit their tort liability for the
incident. The district court dismissed their petition for lack of subject matter
jurisdiction, holding that this case falls outside the general grant of admiralty
jurisdiction in 28 U.S.C. § 1333. We now affirm.
BACKGROUND
A. Factual Background
Captain’s Cove operates a marina in Bridgeport, Connecticut, on the
waters of Black Rock Harbor and Cedar Creek, which open onto Long Island
Sound. The marina facilities include a dockside restaurant, several docks
extending from the dry land into the harbor, and a floating dock (the “South
Dock”) accessible only by water. A water taxi runs from the South Dock to the
restaurant and other facilities.
4
On May 28, 2010, Tandon and Doohan took several passengers2 on the Up
and Over on a social trip to Captain’s Cove. They docked the Up and Over by the
marina restaurant, and proceeded inside for food and drinks. Claimant‐Appellee
Ryan Ulbrick, who had also been invited along, arrived at Captain’s Cove by car
and met the others there.
At about the same time, Third‐Party Defendant–Appellee Frank Genna and
two companions also made a social visit to Captain’s Cove. They arrived in a
boat owned by one of Genna’s companions, moored at the South Dock, and then
took a water taxi to the marina restaurant. Genna and his companions were not
previously acquainted with Tandon, Doohan, or their companions.
Both parties left the restaurant at about the same time. As Tandon, Doohan,
and their passengers were boarding the Up and Over, one of those passengers fell
2
We use the term “passenger” throughout in its broad general sense of “a
person who travels in a conveyance . . . without participating in its operation.”
passenger, n., The American Heritage Dictionary 1285 (4th ed. 2000). We do not mean to
invoke the special admiralty usage of this term for “a person who travels in a public
conveyance by virtue of a contract, express or implied, which involves paying a fare or some
other consideration.” 1 Thomas J. Schoenbaum, Admiralty and Maritime Law, § 5‐5, at
269–70 (5th ed. 2011) (emphasis added). Nothing in the record indicates that the
passengers on board the Up and Over paid any consideration for their voyage; to the
contrary, the available evidence indicates that they were social guests, and so likely
“visitors” under admiralty law. See id. at 270 (“A visitor is a person other than a
passenger or a member of the crew who is on board with the express or implied consent
of the shipowner or operator of the vessel.”).
5
into the water and injured himself. Genna and his companions laughed at the
mishap, leading the passengers on the Up and Over to yell unspecified but
presumably unfriendly comments in response. Genna and his companions then
boarded the water taxi to return to the South Dock, and both the Up and Over and
the water taxi left the main docks.
At that point, the parties’ accounts diverge somewhat. According to an
affidavit filed by Ulbrick, the water taxi headed slightly northeast, toward the
north end of the South Dock, while the Up and Over headed southwest down the
channel toward Long Island Sound. As the Up and Over was making its way
down the channel, Tandon noticed that the passenger who fell while boarding
the Up and Over was bleeding from a scalp wound. She therefore asked Doohan,
who was piloting the boat, to pull over and moor so that she could examine the
passenger’s injuries. According to the state court complaint filed by Genna, on
the other hand, the Up and Over followed in hot pursuit of the water taxi toward
the South Dock. Meanwhile, its passengers yelled and screamed at Genna and his
companions, and at one point threw a beer bottle at them.
The parties agree that both the Up and Over and the water taxi docked at
the South Dock, where a fistfight broke out between Genna’s party and the
6
passengers of the Up and Over. During the fight, one passenger from the Up and
Over hit Genna, knocking him off of the South Dock into the water. According to
Ulbrick, Genna landed face‐down in the water and appeared unconscious;
according to Genna, he was physically held underwater to the point of asphyxia.
Genna claims that he suffered severe injuries from the lack of oxygen, including
“cardiac arrest, respiratory failure, hypoxic encephalopathy resulting in
permanent brain damage[,] and multi‐organ failure.” J.A. 40.
B. Procedural Background
Genna and his wife Donna Genna (together, “the Gennas”) filed suit in
Connecticut state court against Captain’s Cove and several persons affiliated
with it (together, “the Captain’s Cove defendants”).3 They alleged that the
Captain’s Cove defendants were liable for Genna’s injuries, and for Donna
Genna’s resulting loss of consortium, under theories of negligent supervision,
negligence, and reckless dispensing of liquor, and also under the Connecticut
3
Specifically, the Gennas named as defendants “Captain’s Cove Marina of
Bridgeport, Inc. a/k/a The Restaurant at Captain’s Cove, Inc. a/k/a Restaurant at
Captain’s Cove”; Jill Williams, as the “[p]ermittee” of Captain’s Cove; and Kaye
Williams and Bruce Williams, as the “backers” of Captain’s Cove. J.A. 81–82. Captain’s
Cove Marina of Bridgeport, Inc. and The Restaurant at Captain’s Cove Inc., a/k/a
Restaurant at Captain’s Cove, are apparently separate entities and are represented by
different counsel in the present appeal.
7
Dram Shop Act.4 The Captain’s Cove defendants responded by filing a third‐
party complaint against Tandon, Doohan, and their passengers on the Up and
Over (including Ulbrick). In that third‐party complaint, the Captain’s Cove
defendants sought contribution and indemnity for any damages they might be
required to pay the Gennas. The Gennas then filed a second amended complaint
adding Tandon, Doohan, and the passengers on the Up and Over as third‐party
defendants, and asserting claims against them for negligence, recklessness,
assault and battery, and conspiracy.5
Tandon and Doohan proceeded to file a petition for limitation of liability in
the United States District Court for the District of Connecticut, initiating the
present case. That petition asked the district court to either exonerate Tandon and
Doohan from liability for the incident at Captain’s Cove, or else limit their
liability to the value of the Up and Over (appraised at $285,000). In accordance
with the normal rules governing limitation proceedings, the district court stayed
4
The Connecticut Dram Shop Act, Conn. Gen. Stat. § 30‐102, makes a person who
“sells any alcoholic liquor to an intoxicated person” liable to any other person injured as
a consequence of the buyer’s intoxication. See Zucker v. Vogt, 329 F.2d 426, 427–28 (2d
Cir. 1964).
5
Along with Tandon, Doohan, and Ulbrick, this second amended complaint
named Jose Guzman, Brandon McNeal, Ziba Guy, Michael Hermann, Stacy Romano,
Robert Barbieri, and Michael Spregue as third‐party defendants.
8
the pending state court proceedings and ordered that notice be sent to all persons
asserting claims with respect to the incident. The Gennas, the Captain’s Cove
defendants, and Ulbrick all filed claims in the limitation proceeding; two other
passengers on the Up and Over, Michael Hermann and Robert Barbieri, also filed
notices of potential claims.
Ulbrick then moved to dismiss the petition under Federal Rule of Civil
Procedure 12(b)(1), asserting that the district court lacked subject matter
jurisdiction. The district court agreed. Applying the jurisdictional analysis laid
out in Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527 (1995),
the district court held that the alleged torts at issue in this case failed both the
“location” test and the “connection” test for federal admiralty jurisdiction. It held
the location test was not met because the fight in which Genna was injured took
place primarily on the South Dock, and this floating dock was properly
considered an extension of land because it remained permanently in a fixed
location. It also held that the connection test was not met because the type of
incident involved—which the district court characterized as “[a] fight on a
dock”—did not have a potentially disruptive impact on maritime commerce. J.A.
130. The district court therefore dismissed the petition for lack of subject matter
jurisdiction.
9
Tandon and Doohan then filed the present appeal. We have jurisdiction
under 28 U.S.C. § 1291, and now affirm.
DISCUSSION
A. Standard of Review
“When reviewing a district court’s determination of subject matter
jurisdiction pursuant to [Rule] 12(b)(1), we review factual findings for clear error
and legal conclusions de novo.” Close v. New York, 125 F.3d 31, 35 (2d Cir. 1997). In
resolving a motion to dismiss under Rule 12(b)(1), the district court must take all
uncontroverted facts in the complaint (or petition) as true, and draw all
reasonable inferences in favor of the party asserting jurisdiction. See Amidax
Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir. 2011) (per curiam). But
“[w]here jurisdictional facts are placed in dispute, the court has the power and
obligation to decide issues of fact by reference to evidence outside the pleadings,
such as affidavits.” APWU v. Potter, 343 F.3d 619, 627 (2d Cir. 2003) (quoting
LeBlanc v. Cleveland, 198 F.3d 353, 356 (2d Cir. 1999)). In that case, the party
asserting subject matter jurisdiction “has the burden of proving by a
preponderance of the evidence that it exists.” Makarova v. United States, 201 F.3d
110, 113 (2d Cir. 2000).
10
B. Admiralty Jurisdiction
Under our Constitution, the federal judicial power extends “to all Cases of
admiralty and maritime Jurisdiction.” U.S. Const. art. III, § 2, cl. 1. Congress has
codified that jurisdiction at 28 U.S.C. § 1333(1), which gives federal district courts
original jurisdiction over “[a]ny civil case of admiralty or maritime jurisdiction.”
See Vasquez v. GMD Shipyard Corp., 582 F.3d 293, 298 (2d Cir. 2009). “The primary
purpose of federal admiralty jurisdiction is to protect commercial shipping with
uniform rules of conduct.” MLC Fishing, Inc. v. Velez, 667 F.3d 140, 141–42 (2d Cir.
2011) (per curiam) (quoting Vasquez, 582 F.3d at 298).
In this case, Tandon and Doohan invoked the district court’s admiralty
jurisdiction by filing a petition for exoneration from or limitation of liability. That
petition is a form of action peculiar to the admiralty and maritime context. It
seeks the protection of the Limitation of Liability Act, first enacted by Congress in
1851 “to encourage ship‐building and to induce capitalists to invest money in this
branch of industry.” Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 446 (2001)
(quoting Norwich Co. v. Wright, 80 U.S. (13 Wall.) 104, 121 (1872)). Under the
present version of this statute, “the liability of the owner of a vessel for any claim,
debt, or liability [covered by the Act] shall not exceed the value of the vessel and
11
pending freight.” 46 U.S.C. § 30505(a). It applies broadly, limiting the owner’s
liability for any claims arising from “embezzlement, loss, or destruction of any
property, goods, or merchandise shipped or put on board the vessel, any loss,
damage, or injury by collision, or any act, matter, or thing, loss, damage, or
forfeiture, done, occasioned, or incurred, without the privity or knowledge of the
owner.” Id. § 30505(b). The Act thus protects the owner of a vessel from unlimited
vicarious liability for damages caused by the negligence of his captain or crew.
See In re City of N.Y., 522 F.3d 279, 283 (2d Cir. 2008).
To take advantage of this statute, “[t]he owner of a vessel may bring a civil
action in a district court of the United States for limitation of liability.” 46 U.S.C.
§ 30511(a). The owner may also seek total exoneration from liability in the same
action (for instance, by asserting an affirmative defense that bars potential
claims). See Supplemental Rules for Admiralty or Maritime Claims and Asset
Forfeiture Actions (“Supp. R.”) Rule F(2). Once the owner files a petition for
limitation, “all [other] claims and proceedings against the owner related to the
matter in question shall cease.” 46 U.S.C. § 30511(c). The district court then
“issue[s] a notice to all persons asserting claims with respect to which the
[petition] seeks limitation,” instructing such claimants to file their claims in the
12
limitation proceeding before a specified deadline. Supp. R. Rule F(4). Claimants
may also file an answer challenging the petitioner’s right to exoneration from or
limitation of liability. Id. Rule F(5). If the petition for limitation of liability is
granted, the owner can be liable on the covered claims only up to the total value
of his vessel and its pending freight; that amount will then be distributed pro rata
among the proven claims. Id. Rule F(8).
Although the Limitation of Liability Act provides a federal cause of action
for a vessel owner seeking exoneration or limitation, it “does not provide an
independent foundation for federal admiralty jurisdiction.” MLC Fishing, 667
F.3d at 143. That is, the fact that a vessel owner may file a petition for limitation
does not mean the district court necessarily has jurisdiction to hear it. Instead, the
district court will only have admiralty jurisdiction to hear a petition for limitation
if it already has admiralty jurisdiction over the underlying claims that the
petition seeks to limit. See id. at 143–44. We therefore ask whether the underlying
claims raise a “civil case of admiralty or maritime jurisdiction” that the district
court could hear under 28 U.S.C. § 1333(1).
13
Here, the petition seeks to limit liability on underlying claims that sound in
tort. We therefore turn to examine the scope of federal admiralty jurisdiction over
maritime tort claims.
1. Legal Standard
“The traditional test for admiralty tort jurisdiction asked only whether the
tort occurred on navigable waters. If it did, admiralty jurisdiction followed; if it
did not, admiralty jurisdiction did not exist.” Jerome B. Grubart, Inc. v. Great Lakes
Dredge & Dock Co., 513 U.S. 527, 531–32 (1995). The location of the tort normally
depended on where the plaintiff was harmed—or to use a more lawyerly phrase,
where “the substance and consummation of the injury” took place. The Plymouth,
70 U.S. (3 Wall.) 20, 33 (1866). This could occasionally lead to odd results. For
instance, the Supreme Court held on multiple occasions that when negligently
piloted ships rammed structures on the land, the resulting claims were outside
the law of admiralty, because the structures harmed were on the land and not in
the water. See, e.g., Martin v. West, 222 U.S. 191, 195–97 (1911) (collision between a
steamship and the pier of a drawbridge); Cleveland Terminal & Valley R.R. Co. v.
Cleveland S.S. Co., 208 U.S. 316, 319–21 (1908) (collision involving multiple vessels
and causing damage to a shore dock, bridge, protection piling, and pier); Johnson
14
v. Chi. & Pac. Elevator Co., 119 U.S. 388, 389, 397 (1886) (collision between a
schooner and a warehouse, in which the jibboom of the schooner went through
the wall of the warehouse and caused a large quantity of shelled corn to run out
and be lost in the Chicago River).
These ship‐to‐shore collision cases were superseded in 1948 by the
Extension of Admiralty Jurisdiction Act, which extended admiralty jurisdiction
to all “cases of injury or damage, to person or property, caused by a vessel on
navigable waters, even though the injury or damage is done or consummated on
land.” 46 U.S.C. § 30101(a); see Grubart, 513 U.S. at 532. But outside of cases
covered by that Act, the jurisdictional test continued to focus solely on whether
the tort at issue occurred on navigable water. See, e.g., Victory Carriers, Inc. v. Law,
404 U.S. 202, 203–05 (1971) (reiterating the “historic view . . . that the maritime
tort jurisdiction of the federal courts is determined by the locality of the
accident,” and finding no admiralty jurisdiction over an accident suffered by a
longshoreman driving a forklift on a pier).
The Supreme Court first turned away from the traditional location‐based
rule in Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249 (1972). Executive
Jet involved an airplane that took off from a Cleveland, Ohio airport bound for
15
Portland, Maine. Shortly after takeoff, the plane hit a flock of seagulls and
crashed into the navigable waters of Lake Erie. Id. at 250. The owners of the
airplane alleged that the air traffic controller and other airport employees had
been negligent in failing to keep the runway free of seagulls or to adequately
warn the plane’s pilot about the birds. Id. at 251.
The Court declined to decide whether the alleged tort was consummated
when the plane hit the birds (over land) or when it hit the water. Id. at 266–67.
Instead, it held that the location of the tort alone was not enough to give rise to
admiralty jurisdiction. At least in the aviation context, the Court declared,
admiralty jurisdiction also required that the underlying incident bear a
“significant relationship” to “traditional maritime activity involving navigation
and commerce on navigable waters.” Id. at 272. The Court held that a flight
between two airports in the continental United States had no such significant
relationship to traditional maritime activity, and therefore found no admiralty
jurisdiction over the case. Id. at 272–74.
In Foremost Insurance Co. v. Richardson, 457 U.S. 668 (1982), the Court
clarified that the “significant relationship” or “connection” requirement
announced in Executive Jet was a general rule of admiralty jurisdiction, not
16
limited to the aviation context. Id. at 674. Foremost involved a collision between
two noncommercial vessels—pleasure boats—in navigable water on the Amite
River in Louisiana. Id. at 669. The Court found that the connection test was
satisfied, even though neither boat was engaged in commercial maritime activity,
because this type of incident had a significant potential effect on maritime
commerce: “For example, if these two boats collided at the mouth of the St.
Lawrence Seaway, there would be a substantial effect on maritime commerce,
without regard to whether either boat was actively, or had been previously,
engaged in commercial activity.” Id. at 675. The Court determined that this
potential effect on maritime commerce, “when coupled with the traditional
concern that admiralty law holds for navigation,” demonstrated the significant
relationship necessary to support admiralty jurisdiction. Id.
The Court next considered the scope of admiralty tort jurisdiction in Sisson
v. Ruby, 497 U.S. 358 (1990). In that case, a vessel owner filed a petition for
limitation of liability after a fire broke out on his pleasure yacht while it was
docked at a marina on Lake Michigan. The fire destroyed the yacht and damaged
several nearby vessels, but no commercial vessels were affected. Id. at 360, 363.
17
Nevertheless, the Court held that this incident had a sufficiently significant
relationship to traditional maritime activity to sustain admiralty jurisdiction.
The Court applied a two‐part test in Sisson to determine whether the case
before it had a significant connection to maritime affairs. First, the Court looked
to whether the underlying incident had a potentially disruptive effect on
maritime commerce. It described the underlying incident as “a fire on a vessel
docked at a marina on navigable waters,” id. at 363, and held that such a fire has
a potentially disruptive effect, because it “can spread to nearby commercial
vessels or make the marina inaccessible to such vessels,” id. at 362. The Court
explained, moreover, that this potential effect does not depend on “the particular
facts of the incident in this case,” but on “the general features of the type of
incident involved.” Id. at 363. The jurisdictional inquiry therefore turned on
whether fires at marinas would generally disrupt maritime commerce, rather
than on whether the particular fire at issue actually disrupted maritime
commerce.
Second, the Sisson Court looked to whether there was a “substantial
relationship between the activity giving rise to the incident and traditional
maritime activity.” Id. at 364. Again, the Court emphasized that the relevant
18
“activity giving rise to the incident” is defined by the general type of conduct
from which the incident arose, not by the specific facts of the case. “In Executive
Jet, for example, the relevant activity was not a plane sinking in Lake Erie, but air
travel generally.” Id. Likewise, in Sisson, the Court described the relevant activity
as “the storage and maintenance of a vessel at a marina on navigable waters.” Id.
at 365. The Court found this conduct was substantially related to traditional
maritime activity, id. at 367, and so concluded that admiralty jurisdiction was
appropriate.
Finally, the Court restated and formalized the current test for admiralty
tort jurisdiction in Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S.
527 (1995). That case involved a tort claim arising from construction work in the
Chicago River. A construction company had used a crane sitting on a barge in the
river to drive wooden pilings into the riverbed; it thereby (allegedly) cracked a
freight tunnel running under the river, causing water to pour down into the
tunnel and flood buildings in downtown Chicago. The flood victims filed a
number of tort actions in state court; in response, the construction company filed
a petition for limitation of liability in federal district court, invoking the court’s
admiralty jurisdiction. Id. at 529–31.
19
The Supreme Court held that this case fell within the scope of federal
admiralty jurisdiction. It began by laying out its analytical framework:
[A] party seeking to invoke federal admiralty jurisdiction pursuant
to 28 U.S.C. § 1333(1) over a tort claim must satisfy conditions both
of location and of connection with maritime activity. 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. The connection test raises two issues.
A court, first, must assess the general features of the type of incident
involved to determine whether the incident has a potentially
disruptive impact on maritime commerce. Second, a court must
determine whether the general character of the activity giving rise to
the incident shows a substantial relationship to traditional maritime
activity.
Id. at 534 (internal quotation marks and citations omitted).
The Court then proceeded to apply that analysis to the facts before it. It
held that the location test was met because the alleged injury, though occurring
on land, was proximately caused by a vessel on navigable water; the location of
the tort was therefore within the bounds of admiralty as defined by the Extension
of Admiralty Jurisdiction Act. Id. at 534–37; see 46 U.S.C. § 30101(a). It also held
that both parts of the connection test were met: i.e., that this type of incident had
a potentially disruptive impact on maritime commerce, and that the general
20
character of the activity giving rise to the incident showed a substantial
relationship to maritime commerce. Grubart, 513 U.S. at 538–43.
In assessing whether this type of incident had a potentially disruptive
effect on maritime commerce, the Court explained that the type of incident
should be described “at an intermediate level of possible generality,” neither too
general to distinguish different cases nor too specific to the unique facts of the
particular case. Id. at 538–39. It thus characterized the type of incident at issue in
Grubart as “damage by a vessel in navigable water to an underwater structure.”
Id. at 539. The Court found this type of incident could easily have a disruptive
effect on maritime commerce, by disrupting the course of the waterway itself or
by restricting the use of the waterway during necessary repairs. Id.
In applying the second part of the connection test, the Court recognized
that there was “inevitably some play in the joints in selecting the right level of
generality” in describing the general character of the activity giving rise to the
incident. Id. at 542. But that “inevitable imprecision,” it warned, “is not an excuse
for whimsy.” Id. The Court therefore rejected the idea that the relevant activity
could be described as simply “repair and maintenance” or “pile driving,” since
21
those descriptions would artificially eliminate the maritime character of the
construction company’s activity. Id. at 541.
Instead, the Court described the activity giving rise to the incident as
“repair or maintenance work on a navigable waterway performed from a vessel.”
Id. at 540. It found that this activity did bear a substantial relationship to
traditional maritime activity, since barges and similar vessels have traditionally
been used to engage in similar repair work. Id. (citing cases involving repair work
carried out from barges). The Court clarified that although other non‐maritime
activities might have contributed to the ultimate injury—for instance, the city of
Chicago’s alleged failure to maintain and operate the tunnel system—the
substantial relationship test requires only that “one of the arguably proximate
causes of the incident originate[] in the maritime activity of a tortfeasor.” Id. at
541. Consequently, as the location test and both parts of the connection test were
met, the Court held that there was federal admiralty jurisdiction over the petition
for limitation of liability arising from the incident.
The test established in Grubart remains the current test for admiralty
jurisdiction over claims sounding in tort. See MLC Fishing, 667 F.3d at 142;
Vasquez, 582 F.3d at 298. To restate: First, we ask whether the alleged tort meets
22
the location test: that is, whether it occurred on navigable water or was caused by
a vessel on navigable water. Second, we ask whether the alleged tort meets both
subparts of the connection test: that is, whether the general type of incident
involved has a potentially disruptive effect on maritime commerce, and whether
the general character of the activity giving rise to the incident bears a substantial
relationship to traditional maritime activity. See Grubart, 513 U.S. at 534. Only if
the location test and both subparts of the connection test are met will admiralty
tort jurisdiction be proper under 28 U.S.C. § 1333(1).
2. Analysis
We begin our analysis with the location test, evaluating whether the
underlying torts at issue in this case occurred on land or on navigable water. But
the facts here present one of those “perverse and casuistic borderline situations,”
Executive Jet, 409 U.S. at 255, that have always bedeviled the traditional location
test. The fistfight at issue took place on and around a floating dock surrounded
by navigable water, and so one might think the tort occurred on navigable water.
That dock, however, was connected by pilings to the harbor floor, making it
“technically land, through a connection at the bottom of the sea.” The Blackheath,
195 U.S. 361, 367 (1904). It also remained permanently situated in its existing
23
location, according to the district court’s factual findings, and so it cannot be
described as a vessel for admiralty purposes. See Stewart v. Dutra Constr. Co., 543
U.S. 481, 493–94 (2005) (holding that a watercraft that “has been permanently
moored” is no longer a “vessel” for admiralty purposes).6 Moreover, the fight
occurred both on the floating dock and in the surrounding water. According to
the facts recited in the district court’s opinion, Genna was struck on the dock and
knocked into the water. He was then held underwater to the point of
asphyxiation. He consequently suffered injury both on the dock, where he was
struck, and in the water, where he landed and where he was suffocated.
Like the Supreme Court in Executive Jet, we see no reason to resolve the
difficult question of where the underlying tort (or torts) here occurred. Even
assuming arguendo that the location test is met, admiralty jurisdiction cannot
attach because the connection test is not met. In particular, we conclude that the
6
At oral argument, counsel for Tandon and Doohan conceded that sections of the
South Dock were moored by pilings to the floor of the harbor. However, he stated that
floating docks like the South Dock are sometimes detached and taken by boat to the
shore to be stored for the winter. We see no evidence in the record that the South Dock
was ever detached from its existing position, and therefore see no clear error in the
district court’s determination that the South Dock was permanently situated in its
current location.
24
first subpart of the connection test is not met, as this type of incident does not
have a potentially disruptive effect on maritime commerce.
a. Potential Effect on Maritime Commerce
In assessing the potential effect of this type of incident on maritime
commerce, we begin by describing the incident “at an intermediate level of
possible generality.” Grubart, 513 U.S. at 538. Our description should be general
enough to capture the possible effects of similar incidents on maritime commerce,
but specific enough to exclude irrelevant cases. We then determine whether that
type of incident is “likely to disrupt [maritime] commercial activity.” Id. (quoting
Sisson, 497 U.S. at 363). In so doing, we look not to the particular facts of the case
before us—i.e., whether maritime commerce was actually disrupted here—but to
whether similar occurrences are likely to be disruptive. The overall purpose of
the exercise is to determine “whether the incident could be seen within a class of
incidents that pose[] more than a fanciful risk to commercial shipping.” Id. at 539.
We conclude that the incident at issue in this case is best described as a
physical altercation among recreational visitors on and around a permanent dock
surrounded by navigable water. This description accurately captures the nature
of the event giving rise to this suit, and the type of risks that the incident could
25
pose to maritime commerce. Like the descriptions the Court has used in its cases,
our description focuses on the direct and immediate cause of the injuries
suffered, rather than the alleged negligence underlying the suit. See Grubart, 513
U.S. at 538–39 (considering “damage by a vessel in navigable water to an
underwater structure”); Sisson, 497 U.S. at 362–63 (considering “a fire on a vessel
docked at a marina on navigable waters”). It also takes into account the general
location of the incident and the roles of the persons involved, both of which can
be relevant to the potential effect on maritime commerce. See Sisson, 497 U.S. at
363 (including in its description the general location of the fire); Vasquez, 582 F.3d
at 300 (describing the type of incident as “the death of persons repairing and
refitting a vessel” (emphasis added)).
We conclude that this type of incident does not realistically pose a threat to
maritime commerce. First, a fistfight on and around a dock cannot immediately
disrupt navigation. Unlike a sinking plane (as in Executive Jet), a collision
between vessels (as in Foremost), or a collision between a vessel and an
underwater structure (as in Grubart), it does not create any obstruction to the free
passage of commercial ships along navigable waterways. Nor can it lead to a
disruption in the course of the waterway itself. See Grubart, 513 U.S. at 539.
26
Second, a fistfight on a dock cannot immediately damage nearby commercial
vessels. The fire considered in Sisson threatened the safety of all other boats
nearby; a fistfight threatens only its participants. As the district court correctly
pointed out, “[a] fight is unlikely to spread the entire length of a dock, as a fire
would, and, therefore, there is little risk that a fight would make the marina
inaccessible or impact other boats.” J.A. 130.
Third, the class of incidents we consider here includes only fights on
permanent docks—that is, docks that are connected in a permanent fashion to the
land underneath or beside navigable water, and that do not move relative to the
shore (except perhaps by rising and falling with the tide). This type of incident
does not pose the same risks to maritime commerce as a fistfight occurring on a
vessel on navigable water. A fight on a vessel may distract the crew from their
duties, endangering the safety of the vessel and risking collision with others on
the same waterway. If a fight injures someone on a vessel that is at sea, moreover,
that vessel may be forced to divert from its course to obtain medical care for the
injured person. By contrast, a fistfight on a permanent dock does not endanger
the safety of the dock itself or risk a collision between that dock and nearby
vessels. And it obviously cannot require the dock to move or change course.
27
Fourth, the class of incidents we consider here involves only physical
altercations among recreational visitors, not persons engaged in maritime
employment. This type of incident therefore cannot have a potential effect on
maritime commerce by injuring those who are employed in maritime commerce.
Cf. Vasquez, 582 F.3d at 300 (holding there is “little question” that “the death of
persons repairing and refitting a vessel” can potentially disrupt maritime
commerce); Gruver v. Lesman Fisheries Inc., 489 F.3d 978, 982–83 (9th Cir. 2007)
(finding a potential effect on maritime commerce from “an assault on a seaman
by his former maritime employer aboard a vessel in navigable waters”); Coats v.
Penrod Drilling Corp., 61 F.3d 1113, 1119 (5th Cir. 1995) (“Without a doubt, worker
injuries, particularly to those involved in repair and maintenance, can have a
disruptive impact on maritime commerce by stalling or delaying the primary
activity of the vessel.”).7
7
There is a substantial difference for admiralty purposes between an occasional
visitor or passenger on a vessel and a person whose employment revolves around that
vessel. See Chandris, Inc. v. Latsis, 515 U.S. 347, 376 (1995) (defining a “seaman” for
purposes of the Jones Act as an employee whose duties “contribute to the function of
the vessel or to the accomplishment of its mission,” and whose “connection to a vessel
in navigation . . . is substantial in terms of both its duration and its nature”). For
instance, the duty of seaworthiness is owed only to seamen, not to passengers and
visitors. See 1 Thomas J. Schoenbaum, Admiralty and Maritime Law, § 6‐27, at 501 (5th
ed. 2011). Likewise, because the relation between seamen and their employers is central
to maritime commerce, it is well established that federal admiralty jurisdiction extends
28
We therefore conclude that the type of incident involved here—a physical
altercation among recreational visitors on and around a permanent dock
surrounded by navigable water—presents no realistic threat to maritime
commerce.
b. Counterarguments
Tandon and Doohan raise several counterarguments, none of which we
find persuasive. First, they claim that the “type of incident” involved should
include the actions leading up to the fistfight—including their alleged negligence
in piloting the Up and Over in hot pursuit of the water taxi. That argument
confuses the first and second parts of the connection test. The first part of the
connection test looks to the nature of the incident that immediately caused the
underlying injury; the second part, by contrast, looks to the nature of the broader
activity giving rise to that incident. To take a few concrete examples: the type of
incident at issue in Executive Jet was an airplane crash in navigable water, while
the nature of the activity giving rise to that incident was air travel generally. See
Sisson, 497 U.S. at 363–64 (describing Executive Jet). The type of incident at issue in
to claims by seamen against their employers even for injuries on land. See O’Donnell v.
Great Lakes Dredge & Dock Co., 318 U.S. 36, 42–43 (1943); see also Schoenbaum, supra,
§ 3‐7, at 160–62 & n.3.
29
Foremost was a collision between two boats on navigable water, while the nature
of the activity giving rise to that incident was the navigation of vessels generally.
Id. (describing Foremost). The type of incident at issue in Sisson was a fire on a
vessel docked at a marina on navigable waters, while the activity giving rise to
that incident was the storage and maintenance of a vessel at a marina on
navigable waters. Id. at 363–65. In each case, the first part of the connection test
looked more narrowly at the event that directly caused the injury at issue; the
second part of the connection test looked more broadly at the proximate causes of
that event. Cf. Grubart, 513 U.S. at 541 (asking, in applying the second part of the
connection test, “whether one of the arguably proximate causes of the incident
originated in the maritime activity of a tortfeasor”). Here, the event that
immediately caused Genna’s injuries was the physical altercation on and around
the South Dock. It is that “incident” to which we look in determining the “type of
incident” at issue and its potential effect on maritime commerce.
Tandon and Doohan next emphasize that the fight took place not only on
the dock itself, but also in the water beside the dock. We agree that in considering
the type of incident involved, the location of the incident may be relevant. And
we agree that on the facts found by the district court, it appears some harm was
30
done in the water as well as on the dock. That is why we characterize the type of
incident at issue as a physical altercation on and around a permanent dock
surrounded by navigable water.
But we are not convinced by the conclusion Tandon and Doohan seek to
draw: that because the incident involved some harm suffered on navigable water,
it necessarily had a potential effect on maritime commerce. Not all torts that
happen on or over navigable water have the potential to disrupt commercial
shipping. Otherwise, there would be no need for the potential effect test at all; we
could simply apply the location test in its place. Cf. Foremost, 457 U.S. at 675 n.5
(noting that the substantial relationship test is necessary because “[n]ot every
accident in navigable waters that might disrupt maritime commerce will support
federal admiralty jurisdiction”).
Tandon and Doohan speculate that when a fight occurs partly in navigable
water, the struggling bodies could themselves pose a navigational hazard.
Because the class of incidents we are considering is limited to fights on and
around permanent docks, however, we do not worry that the combatants might
present an obstacle to commercial navigation in open sea lanes. Unlike the
“collision between two pleasure boats in navigable waters” considered in
31
Foremost, the type of incident described here could not disrupt commerce by
occurring at the mouth of the St. Lawrence Seaway, because there are no
permanent docks stationed in the middle of that major shipping route. (If there
were, it would be the docks themselves rather than the altercation that would
threaten commercial navigation.) We thus think that the scenario Tandon and
Doohan pose presents only a fanciful risk to commercial shipping. See Grubart,
513 U.S. at 539.
At worst, an incident of this sort might temporarily prevent commercial
vessels from mooring at the permanent dock around which the fight occurred.
Cf. Sisson, 497 U.S. at 362 (noting that a fire on a boat at a marina can “make the
marina inaccessible to [commercial] vessels”). But the potential impact of such a
temporary disruption is simply too meager to support jurisdiction. The fire
considered in Sisson might have damaged a marina enough to close it for days or
weeks, or even permanently; a fistfight presents no similar danger. At worst, it
might prevent commercial ships from using part of a dock for a few hours. We
do not think that this slight possibility of a temporary inconvenience is the
“potentially disruptive impact on maritime commerce” envisioned by the
Supreme Court’s test. Grubart, 513 U.S. at 538.
32
Alternatively, Tandon and Doohan suggest that a fight on a dock
surrounded by navigable water may require emergency responders to come to
the dock by boat and leave by boat, potentially snarling naval traffic in nearby
waters. We recognize that other courts have found the potentially disruptive
impact of a maritime emergency response enough to satisfy the first part of the
connection test in some cases. See, e.g., In re Mission Bay Jet Sports, LLC, 570 F.3d
1124, 1129 (9th Cir. 2009); Ayers v. United States, 277 F.3d 821, 827–28 (6th Cir.
2002); Sinclair v. Soniform, Inc., 935 F.2d 599, 602 (3d Cir. 1991). Those cases,
however, have generally dealt with incidents occurring either aboard a vessel or
else in open water. See, e.g., Mission Bay, 570 F.3d at 1129 (considering “harm by a
vessel in navigable waters to a passenger”); Ayers, 277 F.3d at 827 (considering “a
drowning which occurred a short distance downstream from a lock on navigable
waters”). Where such an incident takes place on a vessel or in open water far
from the shore, the potential danger to commercial shipping posed by a maritime
emergency response may be more significant. Cf. Roane v. Greenwich Swim Comm.,
330 F. Supp. 2d 306, 315 (S.D.N.Y. 2004) (“[T]hose on board a boat . . . giving their
full attention to the saving of the life of a swimmer in difficulty may well be
33
distracted from hazards posed by the approach of other boats unaware of the
rescue in progress, or coming at speed in an effort to assist.”).
But the type of incident at issue in this case is a fight on and around a
permanent dock, not a fight on a vessel or in open water. The risks to maritime
commerce posed by a rescue operation at a dock are substantially lower than the
risks to maritime commerce posed by a rescue operation at sea. Emergency
responders may have to travel by boat to reach persons injured near a permanent
dock, but they will never have to travel far. And once the emergency responders
arrive at the scene, they can moor their vessel at the permanent dock, rather than
having to focus simultaneously on navigating their vessel and rescuing the
injured. An emergency response to an incident on and around a floating dock is
consequently much less likely to “ensnarl maritime traffic,” Mission Bay, 570 F.3d
at 1129, than an emergency response to an incident on a vessel or an incident in
open water.8
8
Tandon and Doohan also cite a number of specific facts about this incident that
they claim increased the risk of disruption to maritime commerce. Those facts include,
for instance, that the incident occurred on Memorial Day weekend, and that the Up and
Over allegedly left the South Dock after the incident at a high rate of speed. To the
extent their argument rests on specific aspects of the incident that actually occurred, it
clearly fails, because our analysis looks only to the general type of incident at issue
rather than particular facts about that incident. See Grubart, 513 U.S. at 538. To the extent
they simply raise these facts to show that this type of incident has a potential disruptive
34
Indeed, accepting the argument that Tandon and Doohan advance would
effectively eviscerate the first part of the connection test. If the possibility of a
maritime emergency response is alone enough to show a potential impact on
maritime commerce, then almost any tort occurring anywhere on or near
navigable water would satisfy this requirement.9 We do not think this part of the
connection test is so easily evaded.
Because the type of incident at issue in this case poses only “a fanciful risk
to commercial shipping,” Grubart, 513 U.S. at 539, it is outside the admiralty and
maritime jurisdiction extended by 28 U.S.C. § 1333(1).10 The district court was
therefore correct to dismiss the petition for lack of subject matter jurisdiction.
effect on maritime commerce, we remain unconvinced that the potential risk is anything
more than fanciful.
9
Perhaps the requirement might still rule out, for example, a defamation claim,
see Wells v. Liddy, 186 F.3d 505, 523–27 & n.16 (4th Cir. 1999), or a claim for tortious
interference with contract, see Wiedemann & Fransen, A.P.L.C. v. Hollywood Marine, Inc.,
811 F.2d 864, 865–66 & n.1 (5th Cir. 1987) (per curiam). We need not consider such
questions here.
10
As this incident does not satisfy the first part of the connection test, we do not
reach the second part, and thus need not decide whether the “activity giving rise to the
incident shows a substantial relationship to traditional maritime activity.” Grubart, 513
U.S. at 534 (internal quotation marks omitted).
35
c. Coda
In developing the modern test for admiralty tort jurisdiction, the Supreme
Court “aimed at keeping a . . . class of odd cases out.” Grubart, 513 U.S. at 532. It
sought to realign the jurisdictional inquiry toward the primary purpose that
supports admiralty jurisdiction—namely, “the federal interest in the protection of
maritime commerce.” Sisson, 497 U.S. at 364 n.2. We are quite convinced that this
case does not implicate that underlying purpose.
In the eloquent words of Justice Stewart:
The law of admiralty has evolved over many centuries, designed
and molded to handle problems of vessels relegated to ply the
waterways of the world, beyond whose shores they cannot go. That
law deals with navigational rules—rules that govern the manner and
direction those vessels may rightly move upon the waters. . . .
Through long experience, the law of the sea knows how to
determine whether a particular ship is seaworthy, and it knows the
nature of maintenance and cure. It is concerned with maritime liens,
the general average, captures and prizes, limitation of liability, cargo
damage, and claims for salvage.
Executive Jet, 409 U.S. at 269–70. As that description shows, the scope of admiralty
law has little or nothing to do with the issues that are likely to appear in cases
like this one. On the contrary, state courts have long dealt with similar fistfights
under state tort law, without any need for interference from federal courts sitting
36
in admiralty. Given the traditional role of state courts in adjudicating such torts,
“[w]e are not inclined at this juncture to disturb the existing precedents and to
extend shoreward the reach of the maritime law further than Congress has
approved.” Victory Carriers, Inc. v. Law, 404 U.S. 202, 211 (1971).11
CONCLUSION
For the reasons above, the judgment of the district court is AFFIRMED.
11
We recognize that “[a]dmiralty jurisdiction and federal maritime law need not
go hand‐in‐hand.” Blue Whale Corp. v. Grand China Shipping Dev. Co., 722 F.3d 488, 497
(2d Cir. 2013). But we remain unwilling to encourage federal courts to take admiralty
jurisdiction over cases better heard in state court.
37