Abt v. Dickson Co of TX

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
October 17, 2007

No. 06-41227 Charles R. Fulbruge III
Clerk

ROBERT ABT,

Plaintiff-Appellant,
v.

DICKSON COMPANY OF TEXAS, and GREENSPORT SHIP CHANNEL
PARTNERS, L.P.,

Defendants-Appellees.

Appeal from the United States District Court
for the Southern District of Texas
(06-CV-129)

Before GARWOOD, JOLLY, and STEWART, Circuit Judges.
PER CURIAM:*
This appeal arises from the district court’s grant of Defendant-Appellee
Greens Port Ship Channel Partners, L.P.’s (“Greens Port”)1 motion to dismiss for
lack of subject matter 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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
Greens Port is the only named defendant which answered the suit in district court.
 No. 06-41227

I. FACTUAL AND PROCEDURAL BACKGROUND
Robert Abt worked as a longshoreman crane operator for Richardson
Stevedoring & Logistics (“Richardson”) at Greens Port Terminal on the Houston
Ship Channel (the “Ship Channel”). Abt operated a water-front crane that was
specifically modified and positioned to load and unload vessels at Greens Port.
In January 2006, a vessel departed from Greens Port after Richardson completed
cargo operations for the ship. After the vessel departed from the port, Abt was
instructed to “walk”2 the crane down the dock so that a vessel scheduled to arrive
the next day could safely dock at Greens Port. According to Abt, in completing
this maneuver, the crane experienced shaking and racking forces due to rails
and other obstacles on Greens Port’s dock. Before he finished moving the crane,
the pedestal supporting the raised cab sheared at its base, causing Abt and parts
of the crane to fall into the Ship Channel. After he fell, Abt held on to a fender
for approximately thirty minutes until rescuers reached the scene. Abt suffered
a number of serious injuries.
The Abts filed suit in federal district court pursuant to its admiralty
jurisdiction under Fed. R. Civ. P. 9(h), asserting claims of negligence, gross
negligence, premises liability, and other torts. Greens Port filed a motion to
dismiss for lack of subject matter jurisdiction, arguing pursuant to Sisson v.
Ruby, 497 U.S. 358 (1990), that the Abts’ claims fell outside the court’s admiralty
and maritime jurisdiction. On June 22, 2006, the district court granted the
motion. The Abts timely filed a notice of appeal.
II. DISCUSSION
We review a district court’s grant of a motion to dismiss for lack of subject
matter jurisdiction de novo. Nat’l Athletic Trainers’ Ass’n v. United States Dep’t
of Health and Human Servs., 455 F.3d 500, 502 (5th Cir. 2006).

2
In this context, walking refers to moving the crane from the water front to the far end
of the dock.

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District courts have original jurisdiction, exclusive of the courts of the
states, of “[a]ny civil case of admiralty or maritime jurisdiction, saving to suitors
in all cases all other remedies to which they are otherwise entitled.” Executive
Jet Aviation, Inc. v. City of Cleveland, Ohio, 409 U.S. 249, 251 (1972) (quoting
28 U.S.C. § 1333(1)). To establish admiralty jurisdiction, first, “the tort must
have a maritime situs;” and second, “the alleged wrong must bear a significant
relationship to traditional maritime activity.” Taylor v. Kennedy Engine, Inc.,
861 F.2d 127, 128 (5th Cir. 1988) (citing Executive Jet, 409 U.S. 249)); Jerome B.
Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534 (1995). The
maritime situs test analyzes “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 (citing 46 U.S.C. App. § 740). The court applies a two-
part analysis to determine whether a sufficient connection exists between the
injury and maritime activity: (1) whether the incident has a potentially
disruptive impact on maritime commerce; and (2) whether “the general character
of the activity giving rise to the incident shows a substantial relationship [to]
traditional maritime activity.” Id. (quoting Sisson, 497 U.S. at 364).
The district court held that this case satisfies the locality test because Abt
was injured once he hit the water, and his injuries were likely exacerbated by
the fact that he remained in the channel for approximately thirty minutes before
being rescued. The district court also determined that the incident could have
potentially disrupted maritime commerce since Abt had to be rescued and debris
removed. However, that court concluded that Abt failed to demonstrate that his
actions at the time of the incident were substantially related to maritime
activity. As the district court explained, Abt was merely moving the crane from
one end of the dock to another; he was not servicing or even preparing to service
a vessel at the time of the incident.

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 No. 06-41227

The Abts central contention on appeal is that the district court erred in
making that final determination.3 In support of their position they highlight the
following facts: that the crane was specifically engineered and designed to
service vessels, and that Abt’s job, providing support and assisting with cargo
operations, has been considered a maritime activity. In light of this, they assert
that the district court should have found that Abt’s task of walking the crane
was substantially related to maritime activity. Their argument is unpersuasive.
Case law has established that traditional admiralty law exists to provide
a legal framework for disputes involving vessels and seamen. See Executive Jet,
409 U.S. at 269-70 (1972) (“[Admiralty law] deals with navigational rules . . .
that govern the manner and direction [by which] vessels may rightly move upon
the waters.”); Taylor, 861 F.2d at 130 (“Admiralty has traditionally been
concerned with the protection of seamen injured in the course of service to their
vessel . . .”). While there are instances where incidents involving land-based
cranes are deemed to have a substantial relationship to maritime activity, see
Kamani v. Port of Houston Authority, 702 F.2d 612 (5th Cir. 1983) (explaining
that the claims of a longshoreman who was working aboard a vessel was injured
while trying to escape the descending jaws of a land-based crane were maritime
in nature), this case does not present such an instance. Had Abt actually been
servicing a vessel when this incident occurred, the Abts argument would be
considerably stronger. But that is not the factual situation we are presented
with in this case. It is uncontested that Abt was walking the crane on the dock,
and that there were no vessels on or near the dock at the time of the incident.
As such, Abt’s land-based movements which gave rise to the incident do not fit
within traditional definitions of maritime activity. To find that the Abts’ claims
fall within the admiralty and maritime jurisdiction of federal courts would

3
Because we can resolve this appeal by addressing this claim alone, we need not
address whether the district court correctly applied the maritime situs test.

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greatly expand that jurisdictional grant to include cases and controversies that
have been historically and purposefully excluded. This we will not do.
Abt’s injuries, while tragic, were “only fortuitously and incidentally
connected to navigable waters [and bear] no relationship to traditional maritime
activity.” Executive Jet, 409 U.S. at 273. Therefore, the Abts’ lawsuit fails to
satisfy the requirements of federal admiralty jurisdiction.
III. CONCLUSION
The judgment of the district court is AFFIRMED.

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