FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEFF GRUVER,
Plaintiff-Appellant,
No. 05-35916
v.
LESMAN FISHERIES INC.; BOB D.C. No.
CV-04-05428-RJB
LESMAN; F/V SUNSET CHARGE,
OPINION
Official Number 534685, in rem,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, District Judge, Presiding
Argued and Submitted
March 7, 2007—Seattle, Washington
Filed June 6, 2007
Before: Diarmuid F. O’Scannlain and Marsha S. Berzon,
Circuit Judges, and Sam E. Haddon,* District Judge.
Opinion by Judge Berzon
*The Honorable Sam E. Haddon, United States District Judge for the
District of Montana, sitting by designation.
6829
6832 GRUVER v. LESMAN FISHERIES INC.
COUNSEL
John W. Merriam, The Law Office of John Merriam, Seattle,
Washington, for the plaintiff-appellant.
Philip W. Sanford, Holmes Weddle & Barcott, Seattle, Wash-
ington, for the defendants-appellees.
OPINION
BERZON, Circuit Judge:
This case raises the question whether a fight aboard a ship
between a seaman and his former maritime employer over
unpaid wages can give rise to federal admiralty jurisdiction.
We find that it does and therefore reverse the district court’s
dismissal of the case for lack of subject matter jurisdiction.
I.
Jeff Gruver worked as a deckhand for Lesman Fisheries,
Inc. aboard the shrimp and crab boat F/V Sunset Charge (“the
Sunset Charge”) from May through June 2004. Robert Lesman1
is the owner and captain of the Sunset Charge and was Gru-
ver’s direct supervisor during the time Gruver worked on the
boat.
Gruver quit his job on the Sunset Charge in early June 2004
to begin working on a different fishing vessel, the F/V Adven-
turous (“the Adventurous”). At the time he left his job on the
Sunset Charge, Gruver was owed some wages. Soon thereaf-
ter, Gruver angrily confronted Lesman at the dock, demand-
ing his unpaid wages. Lesman mailed Gruver his final
paycheck. While the check was in transit, Gruver called and
1
We refer to all defendants as “Lesman” in this opinion.
GRUVER v. LESMAN FISHERIES INC. 6833
left a threatening message on Lesman’s voicemail. In the mes-
sage, Gruver demanded the money and warned that he would
hurt Lesman and damage the Sunset Charge if he was not
paid. Lesman did not return the call, and Gruver received the
final paycheck in the mail the next day. Unsatisfied with the
amount of the check, Gruver again called Lesman and left a
message threatening Lesman and his property if the full
amount of wages owed to him was not paid.
Late in the night on June 18, 2004, Gruver was lying in his
bunk on the Adventurous, waiting for the boat to leave for a
pre-dawn trip to the fishing grounds.2 Lesman boarded the
Adventurous looking for Gruver. Lesman claims he was
attempting to give Gruver a check for the remainder of his
wages and that Gruver attacked him, resulting in a fight. Gru-
ver, by contrast, claims that Lesman found Gruver asleep in
his bunk and, with the help of Lesman’s 380-pound nephew,
beat Gruver severely, attempting to break his legs and vowing
to kill him for leaving the threatening messages.
Gruver managed to escape to a neighbor’s house on land,
where he rang the doorbell and asked the man who answered
to call an ambulance. Gruver suffered broken ribs and a punc-
tured lung as a result of the fight. He had to be hospitalized
for several days due to his injuries. Gruver later reported the
incident to the police, and Lesman eventually was arrested.
On July 22, 2004, Gruver filed a complaint for damages in
federal district court against Robert Lesman, Lesman Fish-
eries, Inc., and the Sunset Charge pursuant to admiralty and
maritime law, citing 28 U.S.C. § 1333, 46 U.S.C. § 10602,
and 45 U.S.C. § 56. The complaint charged Lesman with neg-
ligence and unpaid wages. Gruver thereafter filed an amended
complaint on March 14, 2005, again predicated on admiralty
jurisdiction, asserting causes of action for assault and unpaid
wages. The parties later stipulated to the dismissal of the
2
Gruver lived on the Adventurous at the time of the alleged assault.
6834 GRUVER v. LESMAN FISHERIES INC.
wage claims, leaving only Gruver’s negligence claim under
maritime law3 for Lesman’s alleged assault.
Shortly thereafter, Lesman filed a motion to dismiss the
case pursuant to Federal Rule of Civil Procedure 12(b)(1) for
lack of subject matter jurisdiction. The district court granted
the motion on August 29, 2005, holding that Gruver’s suit
must be dismissed because he had failed to establish federal
admiralty jurisdiction. Gruver timely appealed the order.4
II.
[1] We review de novo the district court’s dismissal for
lack of subject matter jurisdiction. Campbell v. Redding Med.
Ctr., 421 F.3d 817, 820 (9th Cir. 2005). Federal district courts
have original jurisdiction over “[a]ny civil case of admiralty
or maritime jurisdiction.” 28 U.S.C. § 1333(1); see also U.S.
CONST. art. III, § 2. Historically, admiralty5 jurisdiction turned
3
Gruver stipulated that his claims regarding the assault were based on
the general maritime law for negligence and not on the Jones Act.
4
Gruver also appeals the district court’s earlier denial of his motion for
a declaration regarding the availability of punitive damages and of Les-
man’s motion for summary judgment on his in rem claim. While such
non-final orders would ordinarily be unreviewable under 28 U.S.C.
§ 1291, we have “discretionary jurisdiction” to consider them on appeal,
because the district court’s judgment dismissing the case for lack of sub-
ject matter jurisdiction rendered the earlier denials final. See Carey v. Nev.
Gaming Control Bd., 279 F.3d 873, 877 n.1 (9th Cir. 2002). We have
repeatedly declined to exercise such discretion, however, “where . . . the
final order in the case was a dismissal for lack of subject matter jurisdic-
tion.” Jones-Hamilton Co. v. Beazer Materials & Servs., Inc., 973 F.2d
688, 694 n.2 (9th Cir. 1992); see also Burke v. Ernest W. Hahn, Inc., 592
F.2d 542, 546 n.3 (9th Cir. 1979); Simons v. United States, 497 F.2d 1046,
1048-50 (9th Cir. 1974). Because we remand to the district court for fur-
ther proceedings, we decline to address the merits of the district court’s
denial of the in rem and punitive damages motions at this stage.
5
We use the terms “admiralty” and “maritime” interchangeably, as the
relevant caselaw often uses both words without apparent distinction. As
one treatise explains, “the terms ‘admiralty’ and ‘maritime law’ are virtu-
GRUVER v. LESMAN FISHERIES INC. 6835
solely on the question of whether the tort occurred on naviga-
ble waters. Jerome B. Grubart, Inc. v. Great Lakes Dredge &
Dock Co., 513 U.S. 527, 531 (1995). Over time, however, the
test has been refined. Today, a party seeking to invoke federal
maritime jurisdiction over a tort claim must satisfy both a
location test and a connection test.6 Id. at 534.
[2] The location test focuses on “whether the tort occurred
on navigable water or whether injury suffered on land was
caused by a vessel on navigable water.” Id. The connection
test has two prongs, each of which must be met for admiralty
jurisdiction to be proper: “A court, first, must assess the gen-
eral features of the type of incident involved to determine
whether the incident has a potentially disruptive impact on
maritime commerce[.]” Id. (citation and internal quotation
marks omitted). The second prong of the connection test
requires us to examine “whether the general character of the
activity giving rise to the incident shows a substantial rela-
tionship to traditional maritime activity.” Id. (internal quota-
tion marks omitted).
[3] Neither the location test nor the first prong of the con-
nection test are at issue in this appeal. The parties agree the
location test is met because the alleged assault took place
aboard the Adventurous while the ship was floating on navi-
gable waters. See id. (holding location test may be satisfied by
showing tort occurred on navigable water).
ally synonymous in this country today, though the first derives from the
connection of our modern law with the system administered in a single
English court, while the second makes a wider and more descriptive refer-
ence.” GRANT GILMORE & CHARLES L. BLACK, JR., THE LAW OF ADMIRALTY
§ 1-1 (2d ed. 1975).
6
We have also referred to the “connection test” as the “nexus” or “rela-
tionship” test. See Taghadomi v. United States, 401 F.3d 1080, 1084 (9th
Cir. 2005).
6836 GRUVER v. LESMAN FISHERIES INC.
[4] The parties also agree that, with respect to the first
prong of the connection test, the general features of the inci-
dent in question have the potential to disrupt commercial mar-
itime activity. See id.; see also Christensen v. Georgia-Pacific
Corp., 279 F.3d 807, 815 n.31 (9th Cir. 2002) (“The commer-
cial impact prong considers whether the general features of
the incident could hypothetically have an effect on maritime
commerce. It does not require that any impact actually
occurred.”). The incident in question, when properly defined
at an “intermediate level of possible generality,” Grubart, 513
U.S. at 538, involved an assault on a seaman by his former
maritime employer aboard a vessel in navigable waters. Cf. id.
at 539 (describing damage done by barge crane to underwater
freight tunnel as “damage by a vessel in navigable water to an
underwater structure”); Sisson v. Ruby, 497 U.S. 358, 363
(1990) (characterizing a fire caused by a defective washer/
dryer on a pleasure boat docked at a marina as “a fire on a
vessel docked at a marina on navigable waters”).
[5] As Lesman recognizes, resolving a disagreement with
a crewmember through physical violence could render the
crewmember unable to perform his fishing duties. Cf. Gru-
bart, 513 U.S. at 539 (describing commercial impact prong as
asking “whether the incident could be seen within a class of
incidents that posed more than a fanciful risk to commercial
shipping”). Such a loss could delay or cause cancellation of
scheduled fishing trips because of decreased manpower. See
Coats v. Penrod Drilling Corp., 61 F.3d 1113, 1119 (5th Cir.
1995) (en banc) (“Without a doubt, worker injuries . . . can
have a disruptive impact on maritime commerce by stalling or
delaying the primary activity of the vessel.”). Further, if the
ship had to fish with less crewmembers or with the loss of a
key crewmember, it could decrease the number of fish the
crewmen are able to catch. Cf. Weaver v. Hollywood Casino-
Aurora, Inc., 255 F.3d 379, 386 (7th Cir. 2001) (“The City
Lights I was a commercial boat engaged in the transport of
passengers for profit . . . , and without doubt an injury to one
of its crew disrupts its participation in maritime commerce.”).
GRUVER v. LESMAN FISHERIES INC. 6837
Indeed, the detrimental effect on maritime commerce in this
case was more than speculative: Gruver was hospitalized for
days after the attack, depriving the Adventurous of its deck-
hand during scheduled fishing trips. Accordingly, the first
prong of the connection test is met.
III.
The jurisdictional dispute in this case, then, focuses on the
second prong of the connection test: “whether the general
character of the activity giving rise to the incident shows a
substantial relationship to traditional maritime activity.” Gru-
bart, 513 U.S. at 534 (internal quotation marks omitted). To
warrant jurisdiction, the tortfeasor’s activity must be “so
closely related to activity traditionally subject to admiralty
law that the reasons for applying special admiralty rules
would apply.” Id. at 539.
As a first step, we must define what constitutes the “activ-
ity giving rise to the incident.” Id. at 534. The analysis is
complicated by the fact that the tort at issue in the case at bar
does not comport with the typical maritime tort scenario, in
which the tortfeasors are vessel owners engaging in some sort
of maritime activity and where the vessel itself is directly
implicated in the incident. See, e.g., id. at 530 (concerning
vessel that damaged underwater freight tunnel resulting in
flooding to Chicago buildings); Sisson, 497 U.S. at 360, 363
(pertaining to marina fire caused by docked vessel’s defective
washer/dryer); Foremost Ins. Co. v. Richardson, 457 U.S.
668, 675 (1982) (dealing with collision of passenger boats on
navigable water). In such prototypical cases, the relevant
activity for jurisdictional purposes has been defined with ref-
erence to the vessel itself. Grubart, 513 U.S. at 540 (repair or
maintenance on navigable waterway performed from vessel);
Sisson, 497 U.S. at 365 (storage and maintenance of vessel);
Foremost, 457 U.S. at 675-77 & n.5 (navigation of vessels).
Because this case involves an atypical factual scenario, it is
not obvious what the relevant “activity giving rise to the inci-
6838 GRUVER v. LESMAN FISHERIES INC.
dent” entails, since neither the Adventurous nor the Sunset
Charge are directly implicated in the assault.
The district court made an admirable effort to discern the
relevant activity in this unusual case. It identified two possi-
bilities in this regard — the assault and the failure to pay
wages due — before rejecting both as inadequate to sustain a
maritime nexus. We first clarify that the district court misap-
prehended Supreme Court caselaw in entertaining the possi-
bility that the assault could be the pertinent activity. We
further hold that the district court correctly identified the fail-
ure to pay wages due as the relevant activity for the purposes
of the connection test analysis, but that its conception of the
scope of the wage dispute was too general. Defined in the
manner Grubart dictates, Lesman’s failure to pay Lesman for
services rendered has a sufficient connection to traditional
maritime activity. We therefore find admiralty jurisdiction
exists and reverse the district court.
A.
[6] We first reject the possibility that the assault could be
the relevant activity for the purposes of the connection test’s
second prong. The parties and the district court confused the
issue by conflating the relevant “incident,” pertinent to the
first prong of the nexus test, with the relevant “activity giving
rise to the incident,” which is the crux of the second prong of
the test. Grubart illustrates by application, however, that such
an approach is improper. 513 U.S. at 538-40 (dealing with
“incident” and “activity giving rise to the incident” separately
and at different stages of nexus test). A common sense read-
ing of the Court’s language supports the same conclusion, and
we have found no case in which a court has determined that
the tort and the activity giving rise to the tort are interchange-
able for the purposes of the jurisdictional inquiry. Accord-
GRUVER v. LESMAN FISHERIES INC. 6839
ingly, we reject the suggestion that the assault can be both the
“incident” and the “activity giving rise to the incident.”7
B.
As an alternative to the assault, the district court also con-
sidered the possibility that Lesman’s failure to pay wages
owed is the relevant activity for the purposes of the maritime
commerce comparison in the second prong of the connection
test. We conclude that the district court was correct in consid-
ering the failure to pay wages as the relevant activity, but
wrong in concluding that that circumstance does not meet the
second prong of the connection test.
7
Even assuming that the assault could be both the “incident” and the
“activity giving rise to the incident,” the cases Lesman and the district
court rely on for the conclusion that such activity bears an inadequate rela-
tionship to traditional maritime activity are inapposite. The single case
from our circuit cited, Corrigan v. Harvey, 951 F. Supp. 948 (D. Haw.
1996), concerned a fight between seamen on a dock. The district court in
Corrigan found no admiralty jurisdiction existed because “all elements of
the alleged tort occurred on land” and because the “[p]laintiff allege[d]
nothing to distinguish this incident from an ordinary fight in the street.”
Id. at 952-53. Here, the assault occurred on a boat on navigable waters,
and Gruver does allege facts indicating a link to maritime commerce,
namely that the fight was over a claim of unpaid wages for services ren-
dered aboard a commercial fishing boat.
In addition to Corrigan, Lesman relies on Penton v. Pompano Constr.
Co., Inc., 976 F.2d 636 (11th Cir. 1992), and Hall v. Zambelli, 675 F.
Supp. 1023 (S.D. W. Va. 1988). As to the first case, the Eleventh Circuit
has recognized that the relevant portion of Penton was effectively over-
ruled by Grubart. See Alderman v. Pac. N. Victor, Inc., 95 F.3d 1061,
1065 (11th Cir. 1996). Hall is no more helpful, as it relies on the exact
same four-factor test the Supreme Court later rejected in Grubart. 513
U.S. at 543-48; see also Sisson, 497 U.S. at 365 (disapproving of similar
multi-factor tests).
Because we conclude that the assault is not the relevant activity in this
case, however, we decline to comment on whether assaults bear a “sub-
stantial relationship to traditional maritime activity,” as required to satisfy
the second step of the connection test’s second prong. See Grubart, 513
U.S. at 534 (internal quotation marks omitted).
6840 GRUVER v. LESMAN FISHERIES INC.
Taghadomi v. United States, 401 F.3d 1080 (9th Cir. 2005),
guides our analysis. In Taghadomi, we rejected earlier Ninth
Circuit precedent declaring it was “inappropriate . . . to look
past the immediate event surrounding the injury to a more
remote cause.” Id. at 1087 (concluding Delta Country Ven-
tures, Inc. v. Magana, 986 F.2d 1260 (9th Cir. 1993), could
not be reconciled with Grubart). Taghadomi made clear that,
after Grubart, the relevant activity is “not merely the event
immediately surrounding the injury [, but] the behavior of any
‘putative tortfeasor[ ]’ . . . that is an ‘arguably proximate
cause[ ]’ of the injury.” Id. at 1087 (second and fourth alter-
ations in original) (quoting Grubart, 513 U.S. at 541); see
also Grubart, 513 U.S. at 541 (noting that courts need only
find that “one of the arguably proximate causes of the incident
originated in the maritime activity of a tortfeasor”).
[7] Under the approach articulated in Taghadomi, the rele-
vant activity in this case pertains to the wage dispute between
Lesman and Gruver, which gave rise to the injurious incident.
Lesman, the putative tortfeasor, withheld (rightfully or
wrongfully) monies that Gruver felt he was owed for the ser-
vices he had rendered on the Sunset Charge. By Lesman’s
own account of events, he boarded the Adventurous to con-
front Gruver about the wage dispute.8 This “behavior” by Les-
man precipitated the bloody fight on the Adventurous and is
therefore properly considered a proximate cause of the
assault.
8
That Lesman’s stated motivation in seeking out Gruver that night was
to settle the wage feud is a key fact in our analysis. It convinces us that
Gruver’s threatening messages to Lesman were not a superseding inter-
vening cause of the assault. Cf. Farr v. NC Mach. Co., 186 F.3d 1165,
1169 (9th Cir. 1999) (defining superseding cause as “ ‘an act of a third
person or other force which by its intervention prevents the actor from
being liable for harm to another which his antecedent negligence is a sub-
stantial factor in bringing about,’ ” and intervening force as “ ‘one which
actively operates in producing harm to another after the actor’s negligent
act or omission has been committed.’ ” (emphasis omitted) (quoting
RESTATEMENT (SECOND) OF TORTS §§ 440-441 (1965))).
GRUVER v. LESMAN FISHERIES INC. 6841
Having identified the relevant activity, our next task is to
determine how broadly or narrowly to characterize the wage
dispute for the purposes of the comparison to “traditional
maritime activity.” Grubart, 513 U.S. at 534. This step is cru-
cial, as the Supreme Court has recognized that “we might get
a different result simply by characterizing the ‘activity’ in
question at a different level of generality.” See id. at 541-42.
[8] In framing the conduct, Sisson requires that we focus on
the “general character of the activity,” as examining the pre-
cise factual antecedents of the incident at issue would veer too
close to an evaluation of the merits. Such evaluation is inap-
propriate at the jurisdictional stage. See Sisson, 497 U.S. at
364-365; cf. id. at 365 (avoiding commenting on cause of
marina fire at issue by defining relevant activity as “the stor-
age and maintenance of a vessel at a marina on navigable
waters”).
By the same token, however, we must reject the overly gen-
eral characterization of the wage dispute the district court
articulated. The district court considered whether Lesman’s
failure to pay wages was sufficiently maritime in nature to
satisfy the second prong of the connection test.9 The court
concluded that it could not have, as the basic obligation to pay
wages owed was not in any way specific to admiralty law and
therefore did not bear a substantial relationship to traditional
maritime activity.
9
The district court’s second reason for concluding the wage dispute
could not be the relevant activity was that the parties had stipulated to the
dismissal of the wage claims prior to the Rule 12(b)(1) motion. This point
underscores our conclusion that the district court confused the tests for the
first and second prongs of the connection test. While the district court was
correct to conclude that the unpaid wages could not be the incident per-
taining to the tort claim, there is no logical reason why the failure to pay
wages could not be the activity giving rise to the incident — namely, the
assault.
6842 GRUVER v. LESMAN FISHERIES INC.
In framing the issue this way, the district court moved the
camera too far back, thereby obscuring what is apparent from
a more close-up shot of the incident: the maritime context sur-
rounding the wage dispute. The Supreme Court has made
clear that this approach is untenable. Grubart, 513 U.S. at
541-42 (recognizing that, while “a tortfeasor’s activity can be
described at a sufficiently high level of generality to eliminate
any hint of maritime connection,” such “hypergeneralization
. . . would convert Sisson into a vehicle for eliminating admi-
ralty jurisdiction”).
[9] Given the Supreme Court’s mandate to characterize the
relevant activity generally, but not so generally as to ignore
the maritime context, the relevant activity giving rise to the
assault in this case is a failure to pay wages for maritime ser-
vices performed aboard a commercial vessel. It is clear that
paying seamen for their work at sea has a substantial relation-
ship to traditional maritime activities. Indeed, the Supreme
Court has recognized that the fundamental purpose of admi-
ralty law is the protection of maritime commerce. See Sisson,
497 U.S. at 364 n.2 (“In Foremost [Ins. Co. v. Richardson,
457 U.S. 668 (1982)], the Court unanimously agreed that the
purpose underlying the existence of federal maritime jurisdic-
tion is the federal interest in the protection of maritime com-
merce, and that a case must implicate that interest to give rise
to such jurisdiction.”). The obligation of vessel owners and
operators to pay workers for the services that enable such
commerce is inextricably bound up in the “fundamental inter-
est giving rise to maritime jurisdiction.” Id. at 367.
This result is consistent with the Supreme Court’s apparent
approval of the notion that “virtually every activity involving
a vessel on navigable waters would be a traditional maritime
activity sufficient to invoke maritime jurisdiction.” Grubart,
513 U.S. at 542 (internal quotation marks omitted); see also
Taghadomi, 401 F.3d at 1087 (“The Supreme Court empha-
sized in Grubart that the nexus test is not meant to exclude
broad swaths of activity . . . .” ). The generalization is particu-
GRUVER v. LESMAN FISHERIES INC. 6843
larly apt where, as here, the tort in question occurred on navi-
gable waters. See Transatlantic Marine Claims Agency, Inc.
v. Ace Shipping Corp., 109 F.3d 105, 109 (2d Cir. 1997) (“An
important — although not necessarily determinative — con-
sideration in ascertaining whether such a ‘relationship’ exists
is whether the tort occurred on navigable waters.”).
IV.
[10] Because Gruver has satisfied both the location and
connection tests, the district court erred in concluding that it
lacked subject matter jurisdiction to hear this case. We there-
fore REVERSE and REMAND for further proceedings.