Alderman v. Pacific Northern Victor, Inc.

United States Court of Appeals,

Eleventh Circuit.

Nos. 94-3370, 95-2108.

James F. ALDERMAN, Plaintiff-Appellant,

v.

PACIFIC NORTHERN VICTOR, INC., Marco Alaska Northern Victor,
Inc., John Johannassen Victor, Inc., Lloyd Johannassen Victor,
Inc., d/b/a Northern Victor Partnership, Defendants-Appellees,

Southern Tuna Corporation, a Washington Corporation, Defendant.

James F. ALDERMAN, Plaintiff-Appellant,

v.

PACIFIC NORTHERN VICTOR, INC., Marco Alaska Northern Victor,
Inc., John Johannassen Victor, Inc., Lloyd Johannassen Victor,
Inc., d/b/a Northern Victor Partnership, Southern Tuna Corporation,
a Washington Corporation, Defendants-Appellees.

Sept. 23, 1996.

Appeals from the United States District Court for the Northern
District of Florida. (No. 93-50149 RV), Roger Vinson, Judge.

Before TJOFLAT, Chief Judge, BLACK, Circuit Judge, and REAVLEY*,
Senior Circuit Judge.

REAVLEY, Senior Circuit Judge:

In February of 1990 the M/V Northern Victor, owned by the

Northern Victor Partnership, was docked in navigable waters in

southern Florida where it was undergoing a conversion from an oil

drilling vessel to a fish processing vessel. Alderman, a

carpenter, was assisting in the installation of an elevator aboard

the Northern Victor. On the 5th of February, Alderman fell when he

slipped in oil which had leaked from a codfish heading machine.

Years later, Alderman filed the instant suit in state court. The

*
Honorable Thomas M. Reavley, Senior U.S. Circuit Judge for
the Fifth Circuit, sitting by designation.
cause was removed to federal court based upon the diversity of the

parties and upon admiralty jurisdiction. The district court

granted summary judgment in favor of the defendants, and Alderman

appeals.

Relying upon Sisson v. Ruby, 497 U.S. 358, 110 S.Ct. 2892, 111

L.Ed.2d 292 (1990), and our former circuit's opinion in Kelly v.

Smith, 485 F.2d 520, 525 (5th Cir.1973), the district court
1
determined that this was a maritime tort. The district court

granted summary judgment for Northern Victor, holding that the suit

was time barred because it had not been filed within the applicable

three-year statute of limitations.2 Subsequent to that decision,

the Supreme Court handed down its opinion in Grubart v. Great Lakes

Dredge & Dock Co., --- U.S. ----, ----, 115 S.Ct. 1043, 1047, 130

L.Ed.2d 1024 (1995), which specifically rejected the four-factor

test in Kelly, 485 F.2d at 525.

The issue before us is a simple one. If the tort is governed

by maritime law, the parties agree that the statute of limitations

has run. If, however, it is governed by Florida law, the suit

continues. Finding this to be a maritime tort, we affirm.

Discussion

Whether substantive admiralty law applies is a question of

law that we review de novo.3 To determine whether substantive

admiralty law applies, we decide whether this suit comes within the

1
See Sea Vessel, Inc. v. Reyes, 23 F.3d 345, 350 n. 9 (11th
Cir.1994) ("We continue to recognize the Kelly test as a
permissive, as opposed to mandatory, tool.")
2
46 U.S.C.App. § 763a.
3
Sea Vessel, 23 F.3d at 347.
admiralty jurisdiction of the district court.4

A federal court's authority to hear cases in admiralty flows

initially from the Constitution, which "extend[s]" federal judicial

power "to all Cases of admiralty and maritime Jurisdiction."5

Traditionally, the test for admiralty tort jurisdiction was simple;

jurisdiction existed if the tort occurred on navigable waters.6 As

technology advanced, it became apparent that this test was no

longer sufficient. In a trilogy of cases between 1972 and 1990,

the Supreme Court redefined the test for admiralty cases.7

Today, for a tort claim to be cognizable under admiralty

jurisdiction, the activity from which the claim arises must satisfy

a location test and it must have sufficient connection with

maritime activity.8 "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."9 In this case both parties readily agree that this tort

4
See East River Steamship Corp. v. Transamerica Delaval,
Inc., 476 U.S. 858, 862-66, 106 S.Ct. 2295, 2298-99, 90 L.Ed.2d
865 (1986); Mink v. Genmar Industries, Inc., 29 F.3d 1543, 1547
(11th Cir.1994).
5
U.S. Const., Art. III, § 2; Grubart v. Great Lakes Dredge
& Dock Co., --- U.S. ----, ----, 115 S.Ct. 1043, 1047, 130
L.Ed.2d 1024 (1995).
6
Id., at ----, 115 S.Ct. at 1047; The Plymouth, 3 Wall 20,
34, 18 L.Ed. 125 (1865).
7
Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S.
249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972); Foremost Ins. Co. v.
Richardson, 457 U.S. 668, 102 S.Ct. 2654, 73 L.Ed.2d 300 (1982);
Sisson v. Ruby, 497 U.S. 358, 110 S.Ct. 2892, 111 L.Ed.2d 292
(1990).
8
Grubart, --- U.S. at ----, 115 S.Ct. at 1048.
9
Id.
occurred on navigable waters.

The connection test raises two issues. First, we are

required to " "assess the general features of the type of accident

involved,' to determine whether the incident has "a potentially
10
disruptive impact on maritime commerce.' " Second, we "must

determine whether "the general character' of the "activity giving

rise to the incident' shows a "substantial relationship to

traditional maritime activity.' "11 Alderman argues that the

connection test is not met.

A.

The first issue we confront is the potentially disruptive

impact upon maritime commerce. Alderman asserts that, as a matter

of fact, there was no disruptive impact on maritime commerce as a

result of his injury. He argues that the defendants "have not

demonstrated any disruption, other than the unsupported

representation that "the overall aspect of the venture, including

the Plaintiffs, shipyards, and vessel owners commercial interests,

have been affected by the incident.' "

Alderman's reliance on the actual impact of the incident upon

maritime commerce is misplaced. "The first Sisson test turns,

then, on a description of the incident at an intermediate level of

possible generality."12 We must look to "whether the incident could

10
Id. (quoting Sisson, 497 U.S. at 362-64 & n. 2, 110 S.Ct.
at 2896 & n. 2).
11
Grubart, --- U.S. at ----, 115 S.Ct. at 1048 (quoting
Sisson, 497 U.S. at 362-64 & n. 2, 110 S.Ct. at 2897, 2896 & n.
2).
12
Grubart, --- U.S. at ----, 115 S.Ct. at 1051.
be seen within a class of incidents that posed more than a fanciful

risk to commercial shipping."13 The correct inquiry is not whether

there was an effect on maritime activity, but rather whether there

"potentially" could have been.14 This distinction is crucial. When

examining the disruptive impact on maritime activity for purposes

of determining jurisdiction, our focus is not on what actually

happened, but upon the potential effects of what could happen.

In this case, we examine the nature of injuries that resulted

during the conversion of an oil drilling vessel to a fish

processing vessel. The general features of this accident may be

described as an onboard injury which occurred during the repair,

maintenance or conversion of a vessel. Any accident occurring in

this manner could have the potential to disrupt further repairs of

that vessel, vessels being worked on at the same dock, or vessels

waiting to be worked upon. Not only could it inhibit the maritime

commerce of the vessel under repair, but it could easily disrupt

other vessels. Unsafe working conditions aboard a vessel under

repairs, maintenance, or conversion, therefore, pose a potentially

disruptive impact upon maritime commerce.15 Whether or not

13
Id.
14
Grubart, --- U.S. at ----, 115 S.Ct. at 1051; Sisson, 497
U.S. at 362-64, 110 S.Ct. at 2896 ("The jurisdictional inquiry
does not turn on the actual effects on maritime commerce of the
fire on Sisson's vessel; nor does it turn on the particular
facts of the incident in this case....").
15
See Coats v. Penrod Drilling Corp., 61 F.3d 1113, 1119
(5th Cir.1995) (en banc) ("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."); White v. United
States, 53 F.3d 43, 47 (4th Cir.1995) (Person injured while
disembarking a ship docked during repairs "poses a more than
disruption resulted here is of no moment.

B.

Next, Alderman asserts that the activity underlying this suit

does not have a substantial relationship to maritime activity. In

support of his proposition, Alderman relies heavily upon our

opinion in Penton v. Pompano Const. Co., Inc., 976 F.2d 636 (11th

Cir.1992). In Penton we were also examining whether a plaintiff's

negligence claim constituted a maritime tort. Penton operated a

construction crane mounted on a barge. The crane off loaded rocks

from other supply barges and placed the rocks to create a 150-foot-

long jetty. Upon completion of the jetty, Penton was responsible

for the removal of the crane onto land. During this disassembly,

Penton was injured.

The court in Penton characterized the activity causing

Penton's injury as a "typical construction site accident." 16 The

court determined that the unloading of the crane onto land could

not be compared to the unloading of cargo from a vessel. The crane

was not "cargo" in any sense of the word. Additionally, the court

found it important that the crane was being used in the

construction of the 150-foot-long jetty. Essentially, the barge

was being used as a platform for the crane to perform "water-side

construction" of the jetty. The court also found it important that

Penton was a "construction worker by training and experience."17

fanciful risk to a variety of activities essential to maritime
commerce.")
16
976 F.2d at 641.
17
Id.
 We believe Penton is not controlling. Alderman asserts that

he too was merely a "construction worker" and that the accident

suffered aboard the ship was no different than any other "typical

construction site accident" that could occur on land. The work of

the injured plaintiff does not determine whether there is a

substantial relationship to maritime activity. The important

question is "whether a tortfeasor's activity, commercial or

noncommercial, on navigable waters is so closely related to

activity traditionally subject to admiralty law that the reasons

for applying special admiralty rules would apply in the case at

hand."18 Therefore, we are to look not at Alderman's activities,

but instead, the activities of the tortfeasor. This was further

emphasized in Grubart when the Court noted that where there are

multiple tortfeasors "as long as one of the putative tortfeasors

was engaged in traditional maritime activity the allegedly wrongful

activity will "involve' such traditional maritime activity and will

meet the second nexus prong."19 To the extent that the opinion in

Penton relied upon the plaintiff's activities, that case has been

overruled by Grubart.

Our examination of the actions of the tortfeasor should be

given a "broad perspective."20 The "cases have made clear that the

relevant "activity' is defined not by the particular circumstances

of the incident, but by the general conduct from which the incident

18
Grubart, --- U.S. at ----, 115 S.Ct. at 1051 (emphasis
added).
19
Id. at ----, 115 S.Ct. at 1052.
20
Sisson, 497 U.S. at 366-67, 110 S.Ct. at 2898.
arose."21 The Northern Victor's activity was substantially related

to traditional maritime activity. The vessel was undergoing a

conversion from an oil drilling vessel to a fish processing vessel.

Under the broad perspective given the second test, we believe that

conversions, repairs, or maintenance aboard a vessel in navigable

water are substantially related to traditional maritime activity.22

Work upon ships at sea or docked in navigable waterways is an

indispensable maritime activity. It is essential to the continued

productive use of those vessels.

Conclusion

Having determined that both tests are met, this case came

within the admiralty jurisdiction of the district court. "With

admiralty jurisdiction comes the application of substantive

admiralty law."23 Therefore, this is a maritime tort, and the cause

of action is time barred under the applicable three year statute of

limitations.24

AFFIRMED.

21
Sisson, 497 U.S. at 364-66, 110 S.Ct. at 2897.
22
Coats, 61 F.3d at 1119 ("the repair and maintenance of a
jack-up drilling rig on navigable waters is certainly a
traditional maritime activity."); see Grubart, --- U.S. at ----,
115 S.Ct. at 1051 ("On like reasoning, the "activity giving rise
to the incident" in this case, should be characterized as repair
or maintenance work on a navigable waterway performed from a
vessel. Described this way, there is no question that the
activity is substantially related to traditional maritime
activity...." (citation omitted)).
23
East River Steamship, 476 U.S. at 862-66, 106 S.Ct. at
2298-99; Mink, 29 F.3d at 1547.
24
46 U.S.C.App. § 763a.