Admrialty jurisdiction Boating Accident, Boating Accident Law

One of the first things a maritime attorney will look at in a Jones Act case is
whether the claimant was a seaman and if he or she was associated with
a vessel. What is a “vessel”? This case tackles that issue. One of the important
results of this case for a maritime lawyer is that a dredge is a vessel.

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JEROME B. GRUBART, INC., PETITIONER 93-762 v. GREAT LAKES DREDGE & DOCK COMPANY et al. CITY OF
CHICAGO, PETITIONER 93-1094

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

[February 22, 1995]
Justice Thomas , with whom Justice Scalia joins,

This case requires the Court to redefine once again the line between federal admiralty jurisdiction and state power due to
an ambiguous balancing test. The fact that we have had to revisit this question for the third time in a little over 10 years
indicates the defects of the Court's current approach. The faults of balancing tests are clearest, and perhaps most
destructive, in the area of jurisdiction. Vague and obscure rules may permit judicial power to reach beyond its
constitutional and statutory limits, or they may discourage judges from hearing disputes properly before them. Such rules
waste judges' and litigants' resources better spent on the merits, as this case itself demonstrates. It is especially
unfortunate that this has occurred in admiralty, an area that once provided a jurisdictional rule almost as clear as the 9th
and 10th verses of Genesis: "And God said, Let the waters under the heaven be gathered together unto one place, and let
the dry land appear: and it was so. And God called the dry land Earth; and the gathering together of the waters called he
Seas: and God saw that it was good." The Holy Bible, Genesis 1:9-10 (King James Version).
As recently as 1972, courts and parties experienced little difficulty in determining whether a case triggered admiralty
jurisdiction, thanks to the simple "situs rule." In The Plymouth, 3 Wall. 20, 36 (1866), this Court articulated the situs
rule thus: "[e]very species of tort, however occurring, and whether on board a vessel or not, if upon the high seas or
navigable waters, is of admiralty cognizance." This simple, clear test, which Justice Story pronounced while riding circuit,
see Thomas v. Lane, 23 F. Cas. 957, 960 (No. 13,902) (CC Me. 1813), did not require alteration until 1948, when Congress
included within the admiralty jurisdiction torts caused on water, but whose effects were felt on land. See Ex tension of
Admiralty Jurisdiction Act, 62 Stat. 496, 46 U. S. C. App. §740.

The simplicity of this test was marred by modern cases that tested the boundaries of admiralty jurisdiction with ever more
unusual facts. In Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249 (1972), we held that a plane crash in Lake
Erie was not an admiralty case within the meaning of §1333(1) because the tort did not "bear a significant relationship to
traditional maritime activity." Id., at 268. What subsequent cases have failed to respect, however, is Executive Jet's clear
limitation to torts involving aircraft. As we said:
"One area in which locality as the exclusive test of admiralty tort jurisdiction has given rise to serious problems in
application is that of aviation. . . . [W]e have concluded that maritime locality alone is not a sufficient predicate for
admiralty jurisdiction in aviation tort cases." Id., at 261 (emphasis added).

Our identification of the "significant relationship" factor occurred wholly in the context of a discussion of the difficulties
that aircraft posed for maritime law. In fact, while we recognized the extensive criticism of the strict locality rule, we
noted that "for the traditional types of maritime torts, the traditional test has worked quite satisfactorily." Id., at 254.
Thus, Executive Jet, properly read, holds that if a tort occurred on board a vessel on the navigable waters, the situs test
applies, but if the tort involved an airplane, then the "significant relationship" requirement is added.
Although it modified the strict locality test, Executive Jet still retained a clear rule that I could apply comfortably to the
main business of the admiralty court. Nonetheless, the simplicity and clarity of this approach met its demise in Foremost
Ins. Co. v. Richardson, 457 U.S. 668 (1982). That case involved the collision of two pleasure boats on the navigable waters,
a tort that some commentators had argued did not fall within the admiralty jurisdiction because it did not implicate
maritime commerce. See, e.g., Stolz, Pleasure Boating and Admiralty: Erie at Sea, 51 Calif. L. Rev. 661 (1963). The Court
could have resolved the case and found jurisdiction simply by applying the situs test. Instead, responding to the arguments
that admiralty jurisdiction was limited to commercial maritime activity, the Court found that the tort's "significant
connection with traditional maritime activity" and the accident's "potential disruptive impact" on maritime commerce
prompted an exercise of federal jurisdiction. 457 U. S., at 674-675.

It is clear that Foremost overextended Executive Jet, which had reserved the significant relationship inquiry for aviation
torts. As Justice Scalia noted in Sisson, Executive Jet is better "understood as resting on the quite simple ground that the
tort did not involve a vessel, which had traditionally been thought required by the leading scholars in the field." 497 U. S.,
at 369-370 (opinion concurring in judgment). Executive Jet did not in the least seek to alter the strict locality test for torts
involving waterborne vessels. Foremost, however, converted Executive Jet's exception into the rule. In addition to
examining situs, Foremost required federal courts to ask whether the tort bore a significant relationship to maritime
commerce, and whether the accident had a potential disruptive impact on maritime commerce. 457 U. S., at 673-675. The
lower courts adopted different approaches as they sought to apply Foremost's alteration of the Executive Jet test. See
Sisson, supra, at 365, n. 4 (citing cases).

Sisson then affirmed the inherent vagueness of the Foremost test. Sisson involved a marina fire that was caused by a
faulty washer dryer unit on a pleasure yacht. The fire destroyed the yacht and damaged several vessels in addition to the
marina. In finding admiralty jurisdiction, the Court held that the federal judicial power would extend to such cases only if:
(1) in addition to situs, (2) the "incident" poses a potential hazard to maritime commerce, and (3) the "activity" giving
rise to the incident bears a substantial relationship to traditional maritime activity. 497 U. S., at 362-364. The traditional
situs test also would have sustained a finding of jurisdiction because the fire started on board a vessel on the waterways.
Thus, what was once a simple question--did the tort occur on the navigable waters--had become a complicated, multi factor
analysis.

The disruption and confusion created by the Foremost Sisson approach is evident from the post-Sisson decisions of the
lower courts and from the majority opinion itself. Faced with the task of determining what is an "incident" or "activity"
for Sisson purposes, the Fourth, Fifth, and Ninth Circuits simply reverted to the multi factor test they had employed
before Sisson. See Price v. Price, 929 F. 2d 131, 135-136 (CA4 1991); Coats v. Penrod Drilling Corp., 5 F. 3d 877, 885-886
(CA5 1993); Delta Country Ventures, Inc. v. Magana, 986 F. 2d 1260, 1263 (CA9 1993). The District Court's opinion in this
case is typical: while nodding to Sisson, the court focused its entire attention on a totality of the circumstances test, which
includes factors such as "the functions and roles of the parties" and "[t]he traditional concepts of the role of admiralty
law." Pet. for Cert. of Chicago 32a. Such considerations have no place in the Sisson test and should have no role in any
jurisdictional inquiry. The dangers of a totality of the circumstances approach to jurisdiction should be obvious. An
undefined test requires courts and litigants to devote substantial resources to determine whether a federal court may hear
a specific case. Such a test also introduces undesirable uncertainty into the affairs of private actors--even those involved
in common maritime activities--who cannot predict whether or not their conduct may justify the exercise of admiralty
jurisdiction.

Although the majority makes an admirable attempt to clarify what Sisson obscures, I am afraid that its analysis cannot
mitigate the confusion of the Sisson test. Thus, faced with the "potential to disrupt maritime commerce" prong ante, at
10, the majority must resort to "an intermediate level of possible generality" to determine the " `general features' " of
the incident here, id., at 11. The majority does not explain the origins of "levels of generality," nor, to my knowledge, do
we employ such a concept in other areas of jurisdiction. We do not use "levels of generality" to characterize residency or
amount in controversy for diversity purposes, or to determine the presence of a federal question. Nor does the majority
explain why an "intermediate" level of generality is appropriate. It is even unclear what an intermediate level of
generality is, and we cannot expect that district courts will apply such a concept uniformly in similar cases. It is far from
obvious how the undefined intermediate level of generality indicates that the "incident" for Sisson purposes is that of a
vessel damaging an underwater structure.

The majority also applies levels of generality to the next prong of Sisson--whether the tortfeasor is engaged in "activity"
that shows a "substantial relationship to traditional maritime activity." The majority decides that the activity is repair
work by a vessel on a navigable waterway. But, as the petitioners rightly argue, the "activity" very well could be bridge
repair or pile driving. One simply cannot tell due to the ambiguities intrinsic to Sisson and to the uncertainty as to the
meaning of levels of generality. The majority's response implicitly acknowledges the vagueness inherent in Sisson:

"Although there is inevitably some play in the joints in selecting the right level of generality when applying the Sisson
test, the inevitable imprecision is not an excuse for whimsy." Ante, at 14. The Court cannot provide much guidance to
district courts as to the correct level of generality; instead, it can only say that any level is probably sufficient so long as it
does not lead to "whimsy." When it comes to these issues, I prefer a clearer rule, which this Court has demanded with
respect to federal question or diversity jurisdiction. Indeed, the "play in the joints" and "imprecision" that the Court
finds "inevitable" easily could be avoided by returning to the test that prevailed before Foremost. In its effort to create an
elegant, general test that could include all maritime torts, Sisson has only disrupted what was once a simple inquiry.

It should be apparent that this Court does not owe Sisson the benefit of stare decisis. As shown above, Sisson and
Foremost themselves overextended Executive Jet and deviated from a long tradition of admiralty jurisprudence. More
importantly, the new test of Sisson and Foremost did not produce greater clarity or simplicity in exchange for departing
from a century of undisturbed practice. Instead, as discussed earlier, the two cases have produced only confusion and
disarray in the lower courts and in this Court as well. It would seem that in the area of federal subject matter jurisdiction,
vagueness and ambiguity are grounds enough to revisit an unworkable prior decision.
In place of Sisson I would follow the test described at the outset. When determining whether maritime jurisdiction exists
under §1333(1), a federal district court should ask if the tort occurred on a vessel on the navigable waters. This approach
won the approval of two Justices in Sisson, see 497 U. S., at 373 (Scalia, J., joined by White, J., concurring in judgment).

Although Justice Scalia's Sisson concurrence retained a "normal maritime activities" component, it recognized that
anything a vessel does in the navigable waters would meet that requirement, and that "[i]t would be more straightforward
to jettison the `traditional maritime activity' analysis entirely." Id., at 374. I wholly agree and have chosen the
straightforward approach, which, for all of its simplicity, would have produced the same results the Court arrived at in
Executive Jet, Foremost, Sisson, and this case. Although this approach "might leave within admiralty jurisdiction a few
unusual actions," ibid., such freakish cases will occur rarely. In any event, the resources needed to resolve them "will be
saved many times over by a clear jurisdictional rule that makes it unnecessary to decide" what is a traditional maritime
activity and what poses a threat to maritime commerce. Id., at 374-375.

In this case, a straightforward application of the proposed test easily produces a finding of admiralty jurisdiction. As the
majority quite ably demonstrates, the situs requirement is satisfied because the tort was caused by a "spud barge" on the
Chicago River. Ante, at 6-8. Although the accident's effects were felt on land, the Extension of Admiralty Jurisdiction Act
brings the event within §1333(1). While I agree with the majority's analysis of this question, I disagree with its decision to
continue on to other issues. A simple application of the situs test would yield the same result the Court reaches at the end
of its analysis.

This Court pursues clarity and efficiency in other areas of federal subject matter jurisdiction, and it should demand no less
in admiralty and maritime law. The test I have proposed would produce much the same results as the Sisson analysis
without the need for wasteful litigation over threshold jurisdictional questions. Because Sisson departed from a century of
precedent, is unworkable, and is easily replaced with a bright line rule, I concur only in the judgment.

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