Amicus Curiae Brief — Three Buoys Houseboat Vacations U. S. A., Ltd. v. Morts

Gu the Supreme Court of the United States

OCTOBER TERM, 1991

THREE Buoys HOUSEBOAT

VACATIONS U.S.A., LTD., PETITIONER

Vv.

HARVEY G. MORTS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE E/JGHTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney General

MAUREEN E. MAHONEY

Deputy Solicitor General

STEPHEN L. NIGHTINGALE

Assistant to the Solicitor General

ROBERT S. GREENSPAN

CATHERINE L. FISK

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

ag

QUESTIONS PRESENTED

1. Whether 28 U.S.C. 1833(1), which confers ad-

miralty and maritime jurisdiction on the district courts,

extends to an artificial lake that is presently incapable

of sustaining interstate commercial navigation.

2. Whether the Limitation of Liability Act, 46 U.S.C.

App. 181 et seq., applies to claims over which the federal

courts would no* otherwise exercise admiralty and mari-

time jurisdiction.

(1)

Ss ee a ee ne 2D an te el ee cet ie i Ries Mt al — TS —

TABLE OF CONTENTS

Page

Statement . | Oe Pea tind disses ‘e8 1

Discussion . Wels ‘thas ARES 5

Conclusion ............. hg pel ee 1 eT gg URED 20

TABLE OF AUTHORITIES

Cases:

Adams vy. Montana Power Co., 528 F.2d 437 (9th

oa eee .......-.. 11

Boyer, Ex parte, 109 U.S. gf) le

Builders Supply Co., In re, 278 F. Supp. 254 (N.D.

Iowa 1968) | ee 9-10, 20

Butler v. Boston & Savannah Ss. S. Co., 130 U.S. 130

a en 16

Chapman V. United States, 575 F.2d 147 (7th Cir.),

cert. denied, 439 U.S. 893 (1978) ........ 11

Colonial Trust Co., In re, 124 F. — 73 (D. Conn.

1954) FA OS aE al 18

David Wright Charter Service, Ine. Vv. Wright, 925

Ee 0 eR 19

Detroit Trust Co. v. The Thomas Barlum, 293 U. S.

ns cesnibneenenmovenne fr 18

Doran V. Lee, 287 F. Supp. 807 (W.D. Pa. 1968) 9, 19-20

Economy Light & Power Co. v. United States, 256

a ccsemumntenonninneunees 13

Executive Jet Aviation, Inc. V. City of Cleveland,

a non peccnsvnecscrsntinssnaneusennsers 6, 11

Exxon Corp. Vv. Central Gulf Lines, Inc., 111 S. Ct.

oe Geees) .............. Ce lta aon i 10

Finneseth v. Carter, 712 F.2d 1041 (6th Cir. ;

SR TE a ee 11,12

Foremost Ins. Co. V. anaemia 457 U.S. 668

Neen csscnineasoanbeeonness 6, 10

Garnett, In re, 141 U.S. 1 (1891) Tiga Fas Ban hae 16, 17, 18

George V. Beavark, Inc., 402 F.2d 977 (8th Cir.

SESE ee en ae 3

Hartford Accident & Indemnity Co. V. Southern

SR 6 ne 18

(111)

IV

Cases—Continued :

Highland Nav. Corp., In re, 24 F.2d 582 (S.D.N.Y.

AS Te aoe MRO Men tet eae Oe N

Howser’s Petition, In re, 227 F. Supp. 81

(| SEED Sissi mepereecen er Cems

Insurance Co. Vv. Dunham, 78 U.S. (11 Wall.) 1

i al tial

Jackson Vv. The Steamboat Magnolia, 61 U.S. (20

I a i ceases

Johnson Vv. Wurthman, 227 F. Supp. 135 (D. Ore.

A ESI ac ECO EE Reet eH Oe Fa REE See

Just v. Chambers, 812 U.S. 383 (1941) —................

Kaiser Aetna v. United States, 444 U.S. 164

ERENT SES SRT SOT RT ON 8, 11,

Land & Lake Tours v. Lewis, 738 F.2d 961 (8th

Cir.), cert. denied, 469 U.S. 1038 (1984) ...... pam

Lewis Charters, Inc. v. Huckins Yacht Corp., 871

P26 1666 (11th Cir, 3668) ..............-....................

Livingston v. United States, 627 F.2d 165 (8th

Cir. 1980), cert. denied, 450 U.S. 914 (1981) ...

Loc-Wood Boat & Motors V. Rockwell, 245 F.2d 306

KL, I Ee era Toes

Madsen’s Petition, In re, 187 F. Supp. 411

I I cain cintsvacennhaicesbinbinaesemiinebaniaiplociiaesis

Marine Office of America Vv. Manion, 241 F. Supp.

I a eaele

Marine Transit Corp. v. Dreyfus, 284 U.S. 263

SRR OSs aOR Pt aan

Marroni yv. Matey, 492 F. Supp. 340 (E.D. ra.

ESTE ISTE ae eae ae ee ea

Minizx v. Fellers, 654 F. Supp. 1127 (N.D. Cal.

sO ERR RINESARE Ie gtiee Oe Ne RCLOs Sne CmTL eC

Nelson v. Leland, 63 U.S. (22 How.) 48 (1860)....

Norwich Co. v. Wright, 80 U.S. (13 Wall.) 104

— ESRRSENRGSNSTS SEE SRRe tert eee ee

Oseredzuk v. Warner Co., 354 F. Supp. 453 (E.D.

Pa. 1972), aff’d, 485 F.2d 680 (3d Cir. 1973),

cert. denied, 415 U.S. 977 (1974) 2.000.

Phenix Ins. Co., Ex parte, 118 U.S. 610 (1886)...

Price V. Price, 929 F.2d 131 (4th Cir. 1991) —.........

Providence & New York S.S. Co. v. Hill Mfg. Co.,

Oe I II MII cick vecccinecriccseccanumsensnsinicintinnenesnate

Page

12,13

13

19

3, 12

15

11

Cases—Continued : Page

Reed v. United States, 604 F. Supp. 1253 () D.

RSE nee rie 9

Reynolds v. Bradley, 644 F. Supp. 42 (N.D.N.Y.

| St i RARE CE Rs Bei Rae ee ee CR 9

Richardson Vv. Harmon, 222 U.S. 96 (1911) ....5, 14, 16, 19

Romero V. International Terminal Operating Co.,

I I a i a easlistementine 7,14

Sanders v. Placid Oil Co., 861 F.2d 1374 (5th Cir.

nc RRS SRS NIRS eS a 10, 11

Shogry v. Lewis, 225 F. Supp. 741 (W.D. Pa.

a ie ENT na a SR 10

Sisson, In re, 867 F.2d 341 (7th Cir. 1989), rev’d,

on asin cemmeenannensenmenen 19

Sisson V. Ruby:

os scsenenbinnenninincenses 19

1108S. Ct. 2892 (1990) _.............. 4, 6, 10, 14, 15, 16, 19

Stephens, In re, 341 F. Supp. 1404 (N.D. Ga.

lion rain omebia adel Pee OO ERLE IO eee 9,19

The Atlas No. 7, 42 F.2d 480 (S.D.N.Y. 1930)... 18

The Belfast, 74 U.S. (7 Wall.) 624 (1869) _.......... 7

The Daniel Ball, 77 U.S. (10 Wall.) 557 (1871) _.. 8

The Eagle, 75 U.S. (8 Wall.) 15 (1869) —........... 8

The Hine V. Trevor, 71 U.S. (4 Wall.) 555 (1867)... 7,10

The Irving F. Ross, 8 F.2d 313 (D. Mass. 1923) _.. 18

The Montello, 87 U.S. (20 Wall.) 430 (1874) 8

The No. 6, 241 F. 69 (2d Cir. 1917) ........---. 18

The Plymouth, 70 U.S. (3 Wall.) 20 (1866) 15

The Propeller Commerce, 66 U.S. (1 Black) 574

NL SGREE RE SES Ee oa a 7

The Propeller Genesee Chief v. Fitzhugh, 53 U.S.

pf AE 8 Ee eee eee 6, 7,8

The Robert W. Parsons, 191 U.S. 17 (1903)... 8

The Rochester, 230 F. 519 (W.D.N.Y. 1916)... 18

The “Scotland”, 105 U.S. 24 (1882) —.....----..... 15

The Steamboat Thomas Jefferson, 23 U.S. (10

_ FS RISE Se NSP eee ere 6

The Trim Too, 39 F. Supp. 271 (D. Mass. 1941) _. 18

United States v. Appalachian Elec. Power Co., 311

TE DE nc a OT Oe 13

United States v. Riverside Bayview Homes, Inc.,

I, I I a rh atin cede 13

Cases—Continued : Page

Utah Division of State Lands v. United States,

a I eres scuntcoieneepceamennnennens 12

Victory Carriers, Inc. Vv. Law, 404 US. 202

(1971) ........ ‘coum 11

Waring Vv. Clarke, 46 US. (5 How.) 441 (1847) . 6

Constitution, statutea and rule:

U.S. Const. :

Art. I, § 8, Cl. 3 (Commerce Clause) 3, 11, 12, 13, 18

PiU, hia tines isthihcheindigsncinivinegayen 5, 18

Act of Sept. 24, 1789, ch. 20, § 9, 1 Stat. 77 —.......... 7

Act of Mar. 8, 1811, ch. 46, § 12, 2 Stat. 666 ........ 13

Act of Feb. 26, 1845, ch. 20, 5 Stat. 726 7

Act of June 26, 1884, ch. 121, § 18, 23 Stat. 57-58 16

Clean Water Act, 33 U.S.C. 1862(7) . * ce 18

Extension of Admiralty Act, 46 U.S. C. “App. 740 © 10, 19

Limitation of Liability Act, 46 U.S.C. ond 181

et seq. it anaes Oe ae 2

46 U.S.C. pm 183. 4 ie ee 2

46 U.S.C. App. 183(a) ae 17

46 U.S.C. App. 185 . Ce 7 le ee 2

46 U.S.C. App. 188 _ . sl EE ERED we ©

ES ne ee 17

16 Ul Ea ei ee 13

ois i.e See oes, © FE

28 U.S.C. 1833(1) _.. ER SNe See ee 2,6

Be Re thie bien nctetlncidneactdtndenths 2,3, 4,5

OB Cn Berea ren aed ae 13

OO i icaetehile e ittinnk 13

OB Oe ae ice ee atta Aicherectesonenns 13

eR Sc | ene aie: 2

Miscellaneous:

15 Cong. Rec. (1884) :

p.976. ......... RMA Oak OU CY ea: Ie ie OR EP 17

Ej PRR lar PR Cee EN rr ee eee cd a ee 17

G. Gilmore & C. Black, The Law of Admiviliy (24

Ol. ROGIER - iciinti blac taeecotsacienccisdbnuaent 9

Vil

Miscellaneous—Continued : Page

8 A. Jenner, E. Flynn & J. Loo, Benedict on Ad-

miralty (7th ed. 1990) ........cc.ccecce-eeeeeeeveee nee 2

7A J. Moore & A. Palaez, Moore’s Federal Practice

(2d ed. 1988) . sds ie 6, 9, 10

1 S. Friedell, Benedict on Admiralty (rev. ‘Ith ed.

1991) er i 9,18

In the Supreme Court of the United States

OCTOBER TERM, 1991 |

No. 90-1487

THREE Buoys HOUSEBOAT

VACATIONS U.S.A., LTD., PETITIONER

Vv.

HARVEY G. MORTS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is filed in response to the Court’s order in-

viting the Solicitor General to express the views of the

United States.

STATEMENT

1. Petitioner is in the business of chartering house-

boats on the Lake of the Ozarks, which lies entirely

within the State of Missouri. The Lake of the Ozarks

consists of waters of the Osage River (a tributary of the

Missouri River) that are impounded by the Bagnell Dam.

Because the Bagnell Dam has no locks, commercial ves-

sels do not pass from the Lake of the Ozarks to waters

outside Missouri. Pet. App. Al2, Ai5.

On August 2, 1987, one of petitioner’s service vessels,

a 20-foot fiberglass boat, collided with a houseboat on the

Lake of the Ozarks. Two occupants of the houseboat

were killed; three other occupants of the houseboat and

(1)

2

one of petitioner’s employees were injured; and _ peti-

tioner’s service boat sank. Respondents filed actions

against petitioner and its service vessel in Missouri state

courts, seeking recovery for wrongful death, personal in-

jury, and property damage. Pet. App. A2, A12.

2. Petitioner then commenced this action in the United

States District Court for the Eastern District of Mis-

souri. The complaint alleged that, under the Limitation

of Liability Act, 46 U.S.C. App. 181 et seq., petitioner’s

liability to respondents was limited to the value of the

sunken service vessel.' The complaint alleged that the

district court had subject matter jurisdiction under 28

U.S.C. 1833(1), the statutory grant of federal admiralty

jurisdiction; 28 U.S.C. 1231, the grant of general fed-

eral question jurisdiction; and 28 U.S.C. 1337, which

confers federa! jurisdiction over actions “arising under

any Act of Congress regulating commerce.”

The district court dismissed the action. Pet. App. A27-

A37. It first addressed the availability of admiralty ju-

risdiction. The court noted that, under the Eighth Cir-

1 Under specified conditions, the Limitation of Liability Act pro-

vides that “[t]he liability of the owner of any vessel” for damage

or losses arising from a casualty involving the vessel shall not

“exceed the amount or value of the interest of such owner in such

vessel, and her freight then pending.” 46 U.S.C. App. 183. A ship-

owner seeking the benefit of the Act files a petition to limit its

liability in a federal district court. 46 U.S.C. App. 185. Upon the

filing of a petition, the Act mandates procedures analogous to those

of a bankruptcy proceeding. All persons with claims against the

owner or the vessel receive notice of the limitation proceeding and

are admonished to file their claims in that proceeding. The district

court is authorized to stay all other litigation on such claims. When

there are multiple claims against the vessel owner and the value of

the claims exceeds the value of the vessel, the federal court adjudi-

cates whether the owner is entitled to limit its liability under the

Act and the extent to which the owner is liable to each claimant. If

the owner is found to be entitled to the benefit of the Act, the value

of the vessei is apportioned among the successful claimants. See 46

U.S.C. App. 185; Fed. R. Civ. P. Supp. F(3); 3 A. Jenner, E. Flynn

& J. Loo, Benedict on Admiralty §§ 51-52 (7th ed. 1990),

3

cuit’s decision in Livingston v. United States, 627 F.2d

165, 170 (1980), cert. denied, 450 U.S. 914 (1981),

admiralty jurisdiction was dependent upon “contem-

porary navigability in fact.” See Pet. App. A831. Find-

ing that the Lake of the Ozarks is presently incap-

able of sustaining interstate commercial navigation, the

district court concluded that the Lake of the Ozarks “is

not ‘navigable’ for purposes of admiralty jurisdiction,

and thus, is not within the admiralty jurisdiction.” Jd.

at A31, A33.

The district court next concluded that 28 U.S.C. 1331

and 1337 did confer subject matter jurisdiction over the

action, reasoning that the case arose under the Limita-

tion of Liability Act, a statute that the court found to

have been enacted pursuant to the Commerce Clause. Pet.

App. A34-A35. The court concluded, however, that the

Limitation of Liability Act “is properly limited to inci-

dents occurring on waters which are ‘navigable’ for pur-

poses of admiralty jurisdiction and does not extend to a

collision on non-navigable waters.” Jd. at A36. Thus,

the court held, the complaint failed to state a claim on

which relief could be granted. Jd. at A37.

3.a. The Eighth Circuit affirmed the dismissal of the

action. It held that the district court lacked subject

matter jurisdiction and, in the alternative, that the Lim-

itation of Liability Act was not applicable to waters out-

side the scope of admiralty jurisdiction. Pet. App. A1l-

A23. Like the district court, the court of appeals found

that the reasoning of Livingston v. United States, 627

F.2d at 170, foreclosed admiralty jurisdiction. Although

“the Lake of the Ozarks is capable of sustaining com-

mercial shipping,” the court explained, navigability for

purposes of admiralty jurisdiction “requires interstate

or foreign commercial shipping.” Pet. App. A15.?

2 The court observed that although Loc-Wood Boat & Motors v.

Rockwell, 245 F.2d 306, 307 (8th Cir. 1957), and George v. Beavark,

Inc., 402 F.2d 977, 978 (8th Cir. 1968), “seem to provide strong

support for [petitioner’s] contentions,” those decisions were effec-

tively overruled in Livingston. Pet. App. Al5. (Loc-Wood stated

4

The court of appeals also held that 28 U.S.C. 1331

and 1337 did not confer federal jurisdiction over this

action, because the action “arose under state tort law

and cannot be said to have arisen under the Limitation

of Liability Act.” Pet. App. A16. The court explained

that the action would be “resolved according to Missouri

state law” and that, for purposes of jurisdiction, “the

Limitation of Liability Act is * * * akin to a defense.”

Id. at A17. The court found further support for its

conclusion in decisions from other circuits holding that

the. Limitation of Liability Act “does not provide an in-

dependent source of subject matter jurisdiction.” Jd. at

A18.

Finally, the court concluded that even if Section 1331

or Section 1337 provided jurisdiction, “the territorial

application of the Limitation of Liability Act is limited

to waters that are navigable in fact for purposes of

admiralty jurisdiction.” Pet. App. A22. The court re-

jected petitioner’s contention that an 1886 amendment

to the Act, extending it to “all vessels used on lakes or

rivers or in inland navigation,” 46 U.S.C. App. 188, war-

ranted a different conclusion. Noting that the Limita-

tion of Liability Act had excluded inland navigation when

first enacted in 1851, the court determined that the 1886

amendment “merely extended the Act’s protections to all

vessels within: the court’s admiralty jurisdiction, includ-

ing those that were not being operated in the tidewaters.”’

Pet. App. A20. The amendment did not, the court con-

tinued, “expand the Act’s application to waters which are

non-navigable for purposes of admiralty and maritime

jurisdiction.” Ibid.

b. Petitioner filed a petition for certiorari. This Court

granted the petition, vacated the court of appeals’ judg-

ment, and remanded for further consideration in light

of Sisson v. Ruby, 110 S. Ct. 2892 (1990). 110 S. Ct.

that the Lake of the Ozarks was navigable for purposes of admiralty

jurisdiction.) In its later opinion in this case, the court overruled

Loc-Wood. See note 4, infra.

5

8265 (1990). On remand, the court of appeals again

affirmed. Pet. App. Al-A10.

The court noted that Sisson confirmed that “[a]d-

miralty jurisdiction as to torts requires locality (the situs

of the waterway) and nexus (the status of vessel or

activities).” Pet. App. A3. Sisson, the court of appeals

continued, addressed the nexus prong and said “nothing

about what actually constitutes a navigable waterway.”

Ibid. Accordingly, the court reiterated its determinations

that the Lake of the Ozarks is not navigable for purposes

of admiralty jurisdiction; that federal jurisdiction is also

unavailable under 28 U.S.C. 1331 and 1337; and that the

Limitation of Liability Act is coextensive with admiralty

jurisdiction. Pet App. A5-A9.*

DISCUSSION

In our view, the court of appeals was correct in con-

cluding that neither general federal admiralty jurisdic-

tion nor the Limitation of Liability Act extends to the

Lake of the Ozarks because it is presently incapable of

sustaining interstate commercial navigation. There is no

conflict among the courts of appeals that warrants this

Court’s review. Further, although the lower courts’ rea-

soning is potentially inconsistent with a broad reading of

Richardson v. Harmon, 222 U.S. 96 (1911), we do not

believe that the inconsistency need be resolved in this case.

1. Under the Constitution, the judicial power extends

“to all Cases of admiralty and maritime Jurisdiction.”

U.S. Const. Art. III, § 2, Cl. 1. Congress in turn has

granted the district courts exclusive jurisdiction over

“lal|ny civil case of admiralty or maritime jurisdiction,

saving to suitors in al] cases all other remedies to which

3 The panel overruled Loc-Wood to the extent that it was incon-

sistent with Livingston; the panel noted that it had circulated the

opinion to the full court and had received approval for that action.

Pet. App. A7 & n.5.

6

they are otherwise entitled.” 28 U.S.C. 1333(1). Tort

claims must satisfy two requirements to fall within this

jurisdiction. The tort must occur “upon the high seas

or navigable waters,” Sisson v. Ruby, 110 S. Ct. 2892,

2895 (1990), and it must bear “a substantial relation-

ship to traditional maritime activity,” id. at 2897-2898.*

This case concerns the first requirement: the nature of

the “navigable waters” to which admiralty jurisdiction

extends.

a. Until the mid-1800s, admiralty jurisdiction was

limited to the tidewaters—the high seas, salt water ports,

and those inland waterways affected by the ebb and flow

of the tide. Waring v. Clarke, 46 U.S. (5 How.) 441,

464 (1847). See The Steamboat Thomas Jefferson, 23

U.S. (10 Wheat.) 428, 429 (1825). The justification for

that limitation was purely historical. At the time of the

Revolution and the ratification of the Constitution, the

jurisdiction of English admiralty courts was limited by

the tidewater doctrine, and nearly all of the significant

navigable waters in the original 13 States were tide-

waters. See The Propeller Genesee Chief v. Fitzhugh,

53 U.S. (12 How.) 443, 455 (1852).

The growth of commercial maritime activity on the

Mississippi and the Great Lakes exposed the artificiality

of the tidewater doctrine. It made no practical sense to

have admiralty jurisdiction (and the established body of

substantive maritime law that accompanied it) stop at

some arbitrary point on the Mississippi River, or to with-

hold’ that system of law from lakes that were functionally

indistinguishable from the high seas. See 7A J. Moore

& A. Palaez, Moore’s Federal Practice { .200(3], at 2072

(2d ed. 1988). Consequently, in 1845, Congress enacted

a statute extending admiralty jurisdiction to a specified

class of vessels engaged in interstate commerce on “the

4 See also Foremost Ins. Co. Vv. Richardson, 457 U.S. 668 (1982);

Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249

(1972).

7

lakes and navigable waters connecting said lakes.” Act

of Feb. 26, 1845, ch. 20, 5 Stat. 726.

In The Propelier Genesee Chief v. Fitzhugh, 53 U.S.

(12 How.) at 453-460, a case arising out of a collision on

Lake Ontario, the Court upheld the 1845 statute as a

valid exercise of legislative power implicit in the constitu-

tional grant of admiralty jurisdiction.’ The Court over-

ruled prior cases that had limited admiralty jurisdiction

to tidewaters, reasoning (id. at 454 (emphasis added) ) :

Now there is nothing in the ebb and flow of the

tide that makes the waters peculiarly suitable for

admiralty jurisdiction, nor any thing in the absence

of a tide that renders it unfit. If it is a public nav-

igable water, on which commerce is carried on be-

tween different states or nations, the reason for the

jurisdiction is precisely the same And if a distinc-

tion is made on that account, it merely arbitrary,

without any foundation in reason; and, indeed, would

seem to be inconsistent with it.

Subsequent decisions filled in the broad conception of

admiralty jurisdiction recognized in The Propeller Gen-

esee Chief. In Jackson v. The Steamboat Magnolia, 61

U.S. (20 How.) 296, 299-301 (1858), the Court made

clear that the original statutory grant of admiralty juris-

diction, Act of Sept. 24, 1789, ch. 20, §9, 1 Stat. 77,

extended to all rivers navigable from the sea, without

regard to the action of the tide. In The Propeller Com-

merce, 66 U.S. (1 Black) 574, 578-579 (1862), the Court

held that admiralty jurisdiction extends to a tort on nav-

igable waters regardless of whether the vessels involved

are engaged in an interstate or foreign voyage. Accord

The Belfast, 74 U.S. (7 Wall.) 624, 641-642 (1869). In

The Hine v. Trevor, 71 U.S. (4 Wall.) 555, 569 (1867),

the Court summarized the upshot of these decisions as

5 See Romero v. International Terminal Operating Co., 358 U.S.

354, 360-361 (1959) (explaining the i «ture of the authority con-

ferred on Congress by the constitutional grant of admiralty jurisdic-

tion).

8

follows: “The admiralty jurisdiction, to which the power

of the Federal judiciary is by the Constitution declared

to extend, * * * covers the entire navigable waters of

the United States.” Accord Insurance Co. v. Dunham,

78 U.S. (11 Wall.) 1, 25 (1871). See The Eagle, 75 US.

(8 Wall.) 15, 26 (1869) (holding that the 1789 statute

conferred admiralty jurisdiction with respect to all such

navigable waters) .

b. Since The Propeller Genesee Chief, the principal

determinant of admiralty jurisdiction has been interstate

or foreign navigability “in fact.” Kaiser Aetna v. United

States, 444 U.S. 164, 172 n.7 (1979). The basic test is

whether a body of water is currently capable of support-

ing interstate or international commercial navigation.

The Propeller Genesee Chief, 53 U.S. (12 How.) at 454

(jurisdiction logically extends to “public navigable water,

on which commerce is carried on between different states

or nations”) ; Ex parte Boyer, 109 U.S. 629, 632 (1884)

(admiralty jurisdiction extends to waters serving as “a

highway for commerce between ports and places in dif-

ferent States”).* Consistent with this standard, the Court

has recognized that man-made improvements may open

new bodies of water to interstate navigation and thereby

result in an extension of admiralty jurisdiction. Ex parte

Boyer, supra (admiralty jurisdiction encompasses action

arising from a collision on the Illinois and Lake Michigan

Canal); The Robert W. Parsons, 191 U.S. 17, 26-28

(1903) (there is no “distinction in principle” between

“canals” and “other navigable waters”) ; Marine Transit

Corp. v. Dreyfus, 284 U.S. 2638, 271-272 (1932) (New

York Barge Canal is within admiralty jurisdiction).

This case presents the reverse of the fact pattern at

issue in Ex parte Boyer, The Robert W. Parsons, and

Marine Transit Corp., supra. The lower courts found

6 See also The Daniel Ball, 77 U.S. (10 Wall.) 557, 563 (1871);

The Montello, 87 U.S. (20 Wall.) 430 (1874). Although these cases

involved the scope of federal statutes enacted pursuant to the Com-

merce Clause, see Kaiser Aetna v. United States, 444 U.S. at 172,

they are often cited in the context of admiralty jurisdiction.

9

that the Bagnell Dam has made the Osage River im-

passible to commercial navigation between States. Al-

though this Court has never had occasion to consider that

situation, the logic of the cases outlined above suggests

that a fundamental change in the physical condition of a

waterway that makes interstate commercial navigation

infeasible should result in the withdrawal of admiralty

jurisdiction. Admiralty jurisdiction was extended to

inland waterways and canals because there was no in-

telligible distinction, in terms of the considerations under-

lying admiralty jurisdiction, between tidewaters and

other interstate waterways or between artificial and nat-

ural waterways that support interstate commercial navi-

gation. The same reasoning suggests that when a funda-

mental change in conditions, such as the construction of

a dam, closes a waterway to interstate commercial navi-

gation, that waterway should henceforth be afforded the

same treatment as a lake whose natural features permit

only intra-State commercial navigation.’

7In Ex parte Boyer, 109 U.S. at 632, this Court reserved the

question “whether the admiralty jurisdiction of the district court

extends to waters wholly within the body of a State, and from which

vessels cannot so pass as to carry on commerce between places in

such State and places in another State or in a foreign country.”

One commentator has questioned the logic of withholding admiralty

jurisdiction from bodies of water that are capable of supporting

commercial navigation within a single State. See 7A J. Moore &

A. Palaez, Moore’s Federal Practice § .200[3], at 2076 (2d ed. 1988).

But see G. Gilmore & C. Black, The Law of Admiralty 32-33 &

n.103 (2d ed. 1975); 1 S. Friedell, Benedict on Admiralty § 146,

at 9-16 & n.7 (rev. 7th ed. 1991). However, in Nelson v. Leland,

63 U.S. (22 How.) 48, 56 (1860), this Court indicated that interstate

commercial navigation was required for admiralty jurisdiction, and

the lower federal courts have repeatedly adhered to that limitation.

E.g., Miniz v. Fellers, 654 F. Supp. 1127 (N.D. Cal. 1987) ; Reynolds

V. Bradley, 644 F. Supp. 42, 45 (N.D.N.Y. 1986); Reed v. United

States, 604 F. Supp. 1253, 1268 (N.D. Ind. 1984): Oseredzuk v.

Warner Co., 354 F. Supp. 453 (E.D. Pa. 1972), aff’d, 485 F.2d 680

(3d Cir. 1973), cert. denied, 415 U.S. 977 (1974); In re Stephens,

341 F. Supp. 1404 (N.D. Ga. 1965) ; Doran v. Lee, 287 F. Supp. 807,

809-810 (W.D. Pa. 1968); In re Builders Supply Co., 278 F. Supp.

10

As this Court has often noted, the fundamental pur-

pose of federal admiralty jurisdiction is the protection of

maritime commerce. Exxon Corp. v. Central Gulf Lines,

Inc., 111 S. Ct. 2071, 2076 (1991); Sisson v. Ruby, 110

S. Ct. at 2898; Foremost Inc. Co. v. Richardson, 457 U.S.

at 674. That jurisdiction ensures that disputes which may

affect interstate or foreign maritime commerce can be

resolved in a federal forum in accordance with a uniform

body of federal admiralty law. See Sisson v. Ruby, 110

S. Ct. at 2896. When a body of water is no longer capa-

ble of being used as a highway for interstate or foreign

maritime commerce, the basis for providing federal

forum and a uniform body of admiralty law is substan-

tially reduced. The fact that the barrier to commerce is

man-made is immaterial to the justification for the jur-

isdiction. See 7A J. Moore & A. Palaez, Moore’s Federal

Practice J .200[3], at 2077-2078 n.25 (2d ed. 1988) .°

States have long prescribed laws governing those

waters that fall outside the grant of admiralty jurisdic-

tion, see The Hine v. Trevor, 71 U.S. (4 Wall.) at 561,

254, 256-257 (N.D. Iowa 1968) ; Marine Office of America v. Manion,

241 F. Supp. 621 (D. Mass. 1965); Shogry v. Lewis, 225 F. Supp.

741 (W.D. Pa. 1964); In re Madsen’s Petition, 187 F. Supp. 411

(N.D.N.Y. 1960). Whatever its merits as an original matter, the

requirement of interstate or foreign navigability is too well estab-

lished to warrant reconsideration at this time, at least in the absence

of action by Congress. See 46 U.S.C. App. 740 (extending admiralty

jurisdiction to shoreside injuries caused by vessels on navigable

waters).

8 We do not suggest that a transient feature, such as a wreck left

in place for a limited period, would suffice to preclude admiralty

jurisdiction. Admiralty jurisdiction extends to bodies of water that,

because of natural conditions, are navigable only at certain times of

the year, see Sanders v. Placid Oil Co., 861 F.2d 1374, 1376-1378

(5th Cir. 1988), and temporary man-made obstructions would call

for similar treatment. On the scale of time relevant to maritime

commerce, however, the Bagnell Dam cannot fairly be considered

transient. It has fundamentally altered the configuration of the

waters in its vicinity, and it would require a major public works

project to remove it or to create a commercial water route bypassing

it.

11

and that law is available to resolve disputes of the sort

involved in this case. Congress, of course, may exercise

its authority under the Commerce Clause or other enu-

merated powers to prescribe federal standards on issues

of national importance; any such standards would then

be binding oft state or federal courts.® Absent a present

justification for admiralty jurisdiction, there is no sound

reason to displace state law applicable to single-state

bodies of water. See Executive Jet Aviation, Inc. v. City

of Cleveland, 409 U.S. 249, 272-273 (1972) ; Victory Car-

riers, Inc., v. Law, 404 U.S. 202, 211-212 (1971).

ce. There is no conflict among the courts of appeals on

this question. The Ninth and Seventh Circuits have held

that the admiralty jurisdiction does not extend to bodies

of water that, although once used for interstate commer-

cial navigation, have been closed by dams. Adams Vv.

Montana Power Co., 528 F.2d 437, 439 (9th Cir. 1975) ;

Chapman v. United States, 575 F.2d 147, 151 (7th Cir.)

(en banc), cert. denied, 439 U.S. 893 (1978). In this

case, the Eighth Circuit has committed itself to the same

approach, overruling an earlier decision, Loc-Wood Boat

& Motors v. Rockwell, supra, that conflicted with Adams

and Chapman. See notes 2, 4, supra. The reasoning of

decisions in other circuits is also consistent with the ap-

proach applied in the instant case.’°

®“TT here is no doubt that Congress may prescribe the rules of

the road, define the conditions under which running lights shall be

displayed, require the removal of obstructions to navigation, and

exercise its authority for such other reason as may seem to it in

the interest of furthering navigation or commerce.” Kaiser Aetna

v. United States, 444 U.S. at 174.

10 See Sanders v. Placid Oil Co., 861 F.2d at 1377-1378 (finding

admiralty jurisdiction because access to lake was possible over

artificial weir during a significant portion of the year); Price v.

Price, 929 F.2d 131, 1384 (4th Cir. 1991) (holding that admiralty

jurisdiction extends to artificial interstate lake that is presently

capable of sustaining commercial navigation); Finneseth v. Carter,

712 F.2d 1041, 1044-1045 (6th Cir. 1983) (same).

Although Finneseth criticized the reasoning of Livingston, see

712 F.2d at 1045, this case does not involve the point on which the

12

d. Petitioner’s principal contention is that the terms of

the Federal Power Act license for the Bagnell Dam, fed-

eral statutes, and decisions of this Court establish that

the Lake of the Ozarks is navigable. Pet. 4-5, 10-12.

Petitioner’s reliance on these authorities is misplaced,

however, since they do not suggest navigability for pur-

poses of admiralty jurisdiction.

The concept of “navigable waters,” as this Court ob-

served in Kaiser Aetna v. United States, 444 U.S. 164,

171 (1979), is used not only to determine the scope of

admiralty jurisdiction, but also “to define the scope of

Congress’ regulatory authority under the Interstate Com-

merce Clause, to determine the extent of the authority of

the Army Corps of Engineers under the Rivers and Har-

bors Appropriation Act of 1899,” and “to delimit the

boundaries of the navigational servitude” held by the

United States. See also Utah Division of State Lands v.

United States, 482 U.S. 198, 195-198 (1987) (addressing

the “navigable waters” that are subject to the “equal

footing” doctrine). Navigability thus has different

Sixth Circuit took issue with Livingston. See Pet. 13; Pet. Supp.

Br. 3. In Livingston, the accident occurred below a dam on a tribu-

tary of the Mississippi River. See 627 F.2d at 166. Thus, there

remained a continuous interstate water connection between the point

on the tributary where the accident occurred and the sea. The

Eighth Circuit held, nevertheless, that admiralty jurisdiction was

unavailable because the dam had terminated commercial navigation

on the tributery. (Beneath the dam, where the accident in Livingston

occurred, the absence of commercial navigation resulted from the

dam’s effect on the flow of the tributary. See 627 F.2d at 168.)

Finneseth, another case in which the body of water involved con-

nected more than one State, noted that the stream at issue in

Livingston “straddled” two States and criticized Livingston for fail-

ing to acknowledge that potential commercial navigation in an

interstate waterway may sustain admiralty jurisdiction. 712 F.2d

at 1045. The instant case does not present a similar issue. The

lower courts assumed that actual commercial navigation occurs on

the Lake of the Ozarks, but held that the dam made interstate

commercial] navigation impossible.

11Tt is now clear that Congress’s authority under the Commerce

Clause is not limited by any conception of navigability. See, e.g.,

ahaa

13

meanings in different contexts; a body of water may be

navigable in one sense, but not another. See Kaiser

Aetna, 444 U.S. at 172-173. None of the exercises of

federal authority on which petitioner relies purport to

identify waters subject to admiralty jurisdiction. There

United States v. Appalachian Elec. Power Co., 311 U.S. 377, 426-427

(1940) ; United States v. Riverside Bayview Homes, Inc., 474 U.S.

121, 123 (1985) (holding that the Clean Water Act’s definition of

“navigable waters,” 33 U.S.C. 1362(7)), includes not only those

waters that are navigable in fact, but also “nonnavigable intrastate

waters whose use or misuse could affect interstate commerce’).

12TIn 33 U.S.C. 41, which was enacted before the construction of

the Bagnell Dam, Congress declared that the Osage River is not

navigable beyond a point upstream from where the dam now lies.

But this declaration of navigability relates to the Army Corps of

Engineers’ broad power, derived from statutes enacted pursuant to

the Commerce Clause, to regulate all waters that were navigable in

their natural state. See 33 U.S.C. 1 and 401; Economy Light &

Power Co. v. United States, 256 U.S. 113, 123 (1921) (recognizing,

in the context of the Corps’ regulatory authority, that “a river

having actual navigable capacity in its natural state and capable of

carrying commerce among the States, is within the power of Con-

gress to preserve for purposes of future transportation, even though

it be not at present used for such commerce, and be incapable of

such use according to present methods, either by reason of changed

conditions or because of artificial obstructions”). Section 41 thus

involves no legislative determination on the availability of admiralty

jurisdiction. The condition in the Federal Power Act license for the

Bagnell Dam—which reserves federal power to require navigational

improvements or the removal of the dam—also reflects an exercise

of Congress’s power under the Commerce Clause to preserve the

potential navigability of the Osage River. Similarly, the Coast

Guarda’s authority over the Lake of the Ozarks also reflects a broad

legislative grant of power conferred pursuant to the Commerce

Clause, rather than a determination as to admiralty jurisdiction.

See, e.g., 14 U.S.C. 81 et seg. In Land & Lake Tours v. Lewis, 738

F.2d 961, 963, cert. denied, 469 U.S. 1038 (1984), the Eighth Circuit

recognized that the Coast Guard may regulate maritime activity—

in that case, by conducting safety inspections of vessels—on waters

that are not subject to admiralty jurisdiction.

Petitioner also relies on the Act of Mar. 3, 1811, ch. 46, § 12, 2

Stat. 666. This statute, now codified at 33 U.S.C. 10, declares that

“Cajll the navigable rivers and waters in the former Territories of

14

is no dispute that the Coast Guard and the Corps of Engi-

neers may properly exercise broad authority over the

Lake of the Ozarks, but admiralty jurisdiction is gov-

erned by a different concept of navigability.

2. This case also raises the question whether the Limi-

tation of Liability Act empowers federal courts to limit

and resolve liabilities that would not otherwise be subject

to admiralty jurisdiction. That question was also pre-

sented in Sisson v. Ruby, supra, but the Court ulti-

mately did not decide it. 110 S. Ct. at 2894 nl. We

believe that the Act does not reach claims that are other-

wise outside admiralty jurisdiction and, therefore, that

the court of appeals was correct in its conclusion that the

Act has no application to torts occurring on the Lake of

the Ozarks.** Although that position is inconsistent with

a broad reading of Richardsen v. Harmon, supra, the

lower courts have consistently declined to apply the Limi-

tation of Liability Act to inland lakes that will not sup-

port interstate commercial navigation. In that particular

context, therefore, the scope and continuing vitality of

Orleans and Louisiana shall be and forever remain public high-

ways.” This statute asserts perpetual federal authority over waters

brought within the Union by the Louisiana Purchase, but does not

address admiralty jurisdiction.

13 This Court has made clear that petitions filed under the Limita-

tion of Liability Act are within the exclusive federal admiralty

jurisdiction. Providence & New York S.S. Co. v. Hill Mfg. Co., 109

U.S. 578, 594-595 (1883). Thus, we disagree with the district

court’s conclusion that a federal court may exercise general federal

question jurisdiction over limitation of liability proceedings. See

generally Romero v. International Terminal Operating Co., 358 U.S.

854, 359-380 (1959) (admiralty claims do not arise under federal

law within the meaning of statutory grant of general federal ques-

tion jurisdiction). Fiowever, in Richardson, this Court evidently

construed the Act to entail a grant of admiralty jurisdiction suffi-

cient to encompass all claims within its scope. In our view, there-

fore, the questions whether the district court had subject matter

jurisdiction and whether the complaint stated a claim are indistin-

guishable; both turn on the scope of the Act.

15

Richardson are not issues calling for this Court’s atten-

tion.

a. In Sisson v. Ruby, supra, we argued that the Limi-

tation of Liability Act should not be construed to permit

shipowners to iimit their liability for non-maritime

claims—.e., claims that would otherwise be outside ad-

miralty jurisdiction.“ That is so because the Act is best

understood as a statutory addition to the general system

of admiralty and maritime law that incorporates the pre-

existing limits of that system, rather than as a free-

stancing provision of independent scope. See The “Scot-

lanz”, 105 U.S. 24, 29-30 (1882) (the Limitation of Lia-

bility Act “declares the rule which the law-making power

of this country regards as most just to be applied in mar-

itime cases”); Providence & New York S.S. Co. v. Hill

Mfg. Co., 109 U.S. 578, 593-594 (1883) (the principle of

limited liability is “nothing more than the old maritime

rule administered in courts of admiralty in all countries

except England, from time immemorial” and “the sub-

ject-matter itself is one that belongs to the department

of maritime law”) ; Norwich Co. v. Wright, 80 U.S. (13

Wall.) 104, 116-120 (1872) (tracing maritime and ad-

miralty origins of the Act).

When this Court first addressed the relationship be-

tween the Limitation of Liability Act and the admiralty

jurisdiction, it held that the Act did not extend admiralty

jurisdiction beyond its established territorial limits. Ex

parte Phenix Ins. Co., 118 U.S. 610 (1886). In that case,

the owner of a steamer sought to limit its liability for

claims arising from a fire caused by sparks from the

steamer’s smokestack. Because the fire occurred on land,

claims for resulting damages fell outside admiralty juris-

diction as then defined. 118 U.S. at 618-619. See The

Plymouth, 70 U.S. (3 Wall.) 20, 35 (1886). This Court

held that the district court lacked jurisdiction over the

petition to limit liability.

14'We have served the parties with copies of our brief in Sisson

Vv. Ruby, supra. In this brief, we summarize the arguments we made

in Sisson.

16

A few years later, in Butler v. Boston & Savannah S.S.

Co., 130 U.S. 527, 557 (1889), the Court reiterated that

the Limitation of Liability Act applies only to waters

within the scope of admiralty jurisdiction:

It being clear, then, that the law of limited lia-

bility of shipowners is a part of our maritime code,

the extent of its territorial operation * * * cannot

be doubtful. It is necessarily coextensive with that

of the general admiralty and maritime jurisdiction,

and that by the settled law of this country extends

wherever public navigation extends—on the sea and

the great inland lakes, and the navigable waters -

connecting therewith.

Accord In re Garnett, 141 U.S. 1, 12-18 (1891).

b. This Court’s decision in Richardson v. Harmon,

supra, departed from this settled understanding of the

relationship between the Limitation of Liability Act and

admiralty jurisdiction. In Richardson, the owners of a

barge sought to limit their liability for damages arising

from a collision between the barge and a bridge. The Court

acknowledged that the collision was a non-maritime tort

and “as such not within the cognizance of an admiralty

court.” 222 U.S. at 101. The Court also recognized that

the resulting liability would not have been subject to

limitation under the Limitation of Liability Act as orig-

inally enacted; the 1851 statute, the Court explained,

“embraced liability for maritime torts, but excluded both

debts and liabilities for non-maritime torts.” 222 U.S. at

103. The Court concluded, however, that an amendment

to the Limitation of Liability Act, Act of June 26, 1884,

ch. 121, § 18, 23 Stat. 57-58, “was intended to add to the

enumerated claims of the old law ‘any and all debts and

liabilities’ not theretofore included,” including non-mari-

time tort claims. 222 U.S. at 105. Accordingly, it held

that the district court had jurisdiction to limit liability

arising out of the collision.

For the reasons set forth in our brief in Sisson v.

Ruby, supra, at 18-21, it remains our view that the lan-

ee

2 ee? eR

Pe sen eee oma

17

guage and legislative history of the 1884 amendment do

not support Richardson’s ruling that the legislation was

intended to broaden the Limitation of Liability Act to

non-maritime claims."* Moreover, the 1886 amendment

to the Act on which petitioner relies (Pet. 14, 16)—

which extends the statute to “all vessels used on lakes or

rivers or in inland navigation, including canal boats,

barges, and lighters,” 46 U.S.C. App. 188—cannot fairly

be construed to reach waters otherwise beyond the scope

of admiralty jurisdiction. In fact, in In re Garnett, 141

U.S. at 12, this Court upheld the constitutionality of the

1886 Act on that understanding:

It is unnecessary to invoke the power given to Con-

gress to regulate commerce with foreign nations, and

among the several states, in order to find authority

to pass the [1886 amendment]. The act of Congress

which limits the liability of ship owners was passed

in amendment of the maritime law of the country,

and the power to make such amendments is coexten-

sive with that law. It is not confined to the boun-

daries or class of subjects which limit and charac-

terize the power to regulate commerce; but, in mari-

15 The 1851 Act limited a vessel owner’s liability for, inter alia,

“any act, matter, or thing, loss, damage, or forfeiture, done, occa-

sioned, or incurred, without the privity or knowledge of such owner”

(46 U.S.C. App. 183(a)), whereas the 1884 amendment limited the

shipowner’s liability “to the proportion of any or all debts and

liabilities that his individual share of the vessel bears to the whole”

(46 U.S.C. App. 189). Nothing in these two formulations suggests

that the earlier enactment, but not the latter, should incorporate

limitations on general admiralty jurisdiction. The legislative history

likewise suggests no intention to abandon the well-established rela-

tionship between the Act and admiralty jurisdiction. When the

provision was reported to the floor of the Senate, it was described,

in modest terms, as “not so great a change as appears on the face

of the law.” 15 Cong. Rec. 976 (1884) (remarks of Sen. Frye).

Later, in a very brief exchange, one Senator suggested that its only

purpose was to protect shipowners from contractual liabilities. 15

Cong. Rec. 3971 (1884) (remarks of Sen. Vest). There is no indica-

tion that Congress considered—or meant to depart from—the under-

standing reflected in Ex parte Phenix, Brvtler, and other decisions,

18

time matters, it extends to all matters and places to

which the maritime law extends. |**|

In our view, therefore, the Limitation of Liability Act

should be limited to claims that are otherwise within

admiralty jurisdiction.

c. The authorities reflect some confusion regarding the

scope of the Limitation of Liability Act. On the one

hand, Richardson is often cited for the general proposi-

tion that “[p]roceedings by vessel owners to limit their

liability * * * are within the admiralty jurisdiction even

if the claims limited against might not be sued upon in

admiralty.” 1. S. Friedell, Benedict on Admiralty § 225

(rev. 7th ed. 1991).*7 On the other hand, a number of

courts, including the court of appeals in the instant case,

have held that the Limitation of Liability Act does not

16 Jn re Garnett answers petitioner’s contention (Pet. 16) that

the 1886 amendment was passed pursuant to the Commerce Clause

and thus should be construed to extend to waters not subject to

admiralty jurisdiction. First, this Court made clear in In re Garnett.

supra, that the 1886 amendment is best understood as an exercise

of Congress’ power under the Article III grant of admiralty juris-

diction, rather than under the Commerce Clause. Second, in 1886,

as the quotation in the text reflects, the Commerce Clause was

regarded as narrower than the admiralty jurisdiction conferred by

Article III. In 1886, Congress would have been unlikely to view the

Commerce Clause as a source of authority that would enable it to

extend the Limitation of Liability Act beyond the limits of ad-

miralty jurisdiction. In any event, there is no indication that Con-

gress intended such a step.

17 See, €.g., Just v. Chambers, 312 U.S. 383, 386 (1941) (Limita-

tion of Liability Act “extends to tort claims even when the tort is

non-maritime”); Detroit Trust Co. v. The Thomas Barlum, 293

U.S. 21, 44-45 (1934); Hartford Accident & Indemnity Co. v. South-

ern Pac. Co., 273 U.S. 207, 217 (1927) (court of admiralty acquires

the right to marshal “all claims, whether of strictly admiralty origin

or not”); The No. 6, 241 F. 69 (2d Cir. 1917); The Rochester, 230

F. 519, 521 (W.D.N.Y. 1916); The Irving F. Ross, 8 F.2d 313

(D. Mass. 1923); In re Highland Nav. Corp., 24 F.2d 582, 585

(S.D.N.Y. 1927); The Atlas No. 7, 42 F.2d 480 (S.D.N.Y. 1930);

In re Colonial Trust Co., 124 F. Supp. 73, 75 (D. Conn. 1954); The

Trim Too, 39 F. Supp. 271, 273 (D. Mass, 1941).

19

apply to claims that are otherwise outside admiralty

jurisdiction. David Wright Charter Service, Inc. V.

Wright, 925 F.2d 783, 785 (4th Cir. 1991) (per curiam) ;

Lewis Charters, Inc. v. Huckins Yacht Corp., 871 F.2d

1046, 1052-1054 (11th Cir. 1989) ; In re Sisson, 867 F.2d

341, 348-350 (7th Cir. 1989), rev’d on other grounds, 110

S. Ct. 2892 (1990). Richardson, these courts have sug-

gested, may be limited to its facts—i.e., to shoreside

damage caused by vessels on waters within the scope of

admiralty jurisdiction.** Although we agree with the re-

sult reached in these cases, we believe that their reason-

ing is difficult to reconcile with Richardson’s broad hold-

ing that, as amended in 1884, the Limitation of Liability

Act covers “ ‘any and all debts and liabilities’ [of vessel

owners] not theretofore included.” 222 U.S. at 105.

In Sisson ¥. Ruby, supra, we were invited to file a brief

at the petition stage, and we suggested that the Court

should grant further review and to consider overruling

Richardson, In its order granting certiorari in Sisson,

this Court requested the parties “to brief and argue the

question whether or not the Court should reconsider”

Richardson. 110 §S. Ct. 863 (1990). Ultimately, however,

the Court found it unnecessary to resolve that question.

110 S. Ct. at 2894 n.1. xi

Although the scope of the Limitation of Liability Act

and the continuing validity of Richardson are matters

that may someday call for the Court’s attention, we be-

lieve that this Court need not address those issues in this

case. To our knowledge, no decision suggest that the

Limitation of Liability Act should be applied to inland

lakes that are incapable of supporting interstate commer-

cial navigation.’* Richardson did not purport to address

18 Because of the enactment of the Extension of Admiralty Act,

46 U.S.C. App. 740, the precise claims at issue in Richardson are

now within the admiralty jurisdiction of the federal courts. Thus,

Richardson’s construction of the statute is unnecessary to enable

shipowners to limit liability for such claims.

19 See Marroni v. Matey, 492 F. Supp. 340 (E.D. Pa. 1980); In re

Stephens, 341 F. Supp. 1404 (N.D. Ga. 1965); Doran v. Lee, 287

20

those waters, and thus does not bind lower courts to

apply the statute in that context. Consequently, notwith-

standing the uncertainty regarding Richardson, we do

not believe that this case warrants further review.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney General

MAUREEN E. MAHONEY

Deputy Solicitor General

STEPHEN L. NIGHTINGALE

Assistant to the Solicitor General

ROBERT S. GREENSPAN

CATHERINE L. FIsk

Attorneys

AUGUST 1991

F. Supp. 807, 809-810 (W.D. Pa. 1968); In re Builders Supply Co.,

278 F. Supp. 254, 256-257 (N.D. Iowa 1968) ; Johnson Vv. Wurthman,

227 F. Supp. 135 (D. Ore. 1964); In re Howser’s Petition, 227

F. Supp. 81 (W.D.N.C. 1964) ; In re Madsen’s Petition, 187 F. Supp.

411 (N.D.N.Y. 1960).

W ov. 6. GOVERNMENT PRINTING OFFICE, 1991 262061 45013