Amicus Curiae Brief — Sisson v. Ruby

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No. 88-2041

In the Supreme Court

OF THE

United States

APRIL TERM, 1990

EVERETT A. SISSON

Petitioner,

v.

BURTON B. RUBY, ET AL.

Respondents.

On Writ of Certiorari to the United States Court of

Appeal for the Seventh Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE AND BRIEF AMICUS CURIAE OF

AMERICAN AUTO, INC. IN SUPPORT OF

PETITIONER, EVERETT A. SISSON

TERENCE S. Cox

(Counsel of Record)

DENNIS J. HERRERA

DERBY, COOK, QUINBY & TWEEDT

333 Market Street, Suite 2800

San Francisco, CA 94105

(415) 777-0505

Attorneys for Amicus Curiae

American Auto, Inc.

BOWNE OF SAN FRANCISCO, INC + 190 NINTH ST. « SF. CA 94103 + (415) 284-2200

No. 88-2041

In the Supreme Court

OF THE

United States

APRIL TERM, 1990

EVERETT A. SISSON

Petitioner,

Vv.

BURTON B. RuBY, ET AL.

Respondents.

On Writ of Certiorari to the United States

Court of Appeal for the Seventh Circuit

MOTION IN SUPPORT OF LEAVE TO FILE BRIEF

AMICUS CURIAE OF AMERICAN AUTO, INC. IN

SUPPORT OF PETITIONER, EVERETT A. SISSON

TERENCE S. Cox

(Counsel of Record)

DENNIS J. HERRERA

DerBy, Cook, QuINBY & TWEEDT

333 Market Street, Suite 2800

San Francisco, CA 94105

(415) 777-0505

Attorneys for Amicus Curiae

American Auto, Inc.

BOWNE OF SAN FRANCISCO, INC. + 190 NINTH ST. + SF. CA 94103 + (415) 284-2200

i

TABLE OF CONTENTS

Interest Of The Amicus Curiae .......................

Practical Concerns Raised By This Amicus Which May Not

Be Addressed By The Parties To This Petition ........

3

TABLE OF AUTHORITIES

Cases

Page

Complaint of Sisson, 867 F.2d 341 (7th Cir. 1989) ...... 2,3

Executive Jet Aviation v. City of Cleveland, 409 U.S. 249, 93

S.Ct. 493, 34 LB. 26 456 (1972)... cc cccccccccess 3

Foremost Insurance Company v. Richardson, 457 U.S. 668,

102 S.Ct. 2654, 73 L.Ed. 2d 300 (1982).............. 3

In The Matter Of The Complaint Of American Auto, Inc.,

Court of Appeals No. 89-15689 .................... 1,2,3

In The Matter Of The Complaint of American Auto, Inc.,

SSSD ADE. BGR Gree Ge BOUOD ccc ccccccccces 2,3

Statutes

ee I own ancbeneddenednaccdocdensess 2

SP EEE Gana Cacuunoscedweenedinesisccieeinesn 4

Rule

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No. 88-2041

In the Supreme Court

OF THE

United States

APRIL TERM, 1990

EveERETT A. SISSON

Petitioner,

Vv.

BURTON B. RUBY, ET AL.

Respondents.

On Writ of Certiorari to the United States Court of

Appeal for the Seventh Circuit

MOTION IN SUPPORT OF LEAVE TO FILE BRIEF

AMICUS CURIAE OF AMERICAN AUTO, INC. IN

SUPPORT OF PETITIONER, EVERETT A. SISSON

American Auto, Inc. (“American Auto”) respectfully moves

that this Court grant it leave to file the attached brief Amicus

Curiae in support of the position of the petitioner, Everett A.

Sisson. American Auto has not been successful in obtaining the

written consent of the parties to the case, and thereby files this

motion contemporaneously with its proposed brief Amicus Curiae

pursuant to Supreme Court Rule 36.3.

INTEREST OF THE AMICUS CURIAE

The interest of American Auto in this case arises from the fact

that American Auto is the appellant in the pending Ninth Circuit

case known as In The Matter Of The Complaint Of American

Auto, Inc., Court of Appeals No. 89-15689. The written briefing

2

before the Ninth Circuit has been completed in American Auto,

but no date has been assigned for oral argument. The appeal in

American Auto is from a reported district court decision Jn the

Matter of the Complaint of American Auto, Inc., 1989 A.M.C.

1489 (N.D. Cal. 1989). The district court dismissed the case,

adhering to the Seventh Circuit admiralty jurisdictional tests

articulated Jn The Matter Of The Complaint Of Sisson 867 F.2d

341 (7th Cir. 1989). American Auto does not believe that its

position will be adequately presented by the parties to the Sisson

case, within the meaning of Rule 36.3, unless this brief is

considered.

In The’ Matter Of The Complaint Of American Auto, Inc.

presents the same issues that are before the Court in the present

case: First, whether torts involving noncommercial pleasure ves-

sels which pose a potential threat to commercial shipping are

sufficiently related to traditional maritime activity to permit a

federal court to exercise admiralty jurisdiction even where the tort

does not implicate navigation; and second, whether the Limitation

of Liability Act, 46 U.S.C. § 183 et. seq., independently creates

subject matter jurisdiction in the federal courts statutorily, sepa-

rate and distinct from the test for constitutional admi-

ralty/ maritime jurisdiction.

More importantly, the facts in the American Auto case provide

a vivid illustration that the Seventh Circuit’s jurisdictional tests

would be difficult to apply and would disrupt the uniform applica-

tion of federal maritime law. American Auto believes that the

facts presented by Sisson are deceptively straightforward. Sisson

involves a vessel which burned within its sheltered marina, with

no loss of life or injury to persons. Neither was there any danger

of the inconsistent application of other federal maritime statutes.

American Auto presents more difficult issues. Its factual pat-

tern has a far closer nexus with traditional maritime activity than

is presented to this Court in Sisson, and thus highlights deficien-

cies in the rule adopted by the Seventh Circuit.

American Auto filed a complaint seeking exoneration from or

limitation of liability under 46 U.S.C. § 183 et. seg. for injuries

and/or damages arising out of a fire aboard the vessel ANTICI-

3

PATION on January 9, 1988 off the coast of Cabo San Lucas,

Mexico.

On April 21, 1989, the district court granted the claimant’s

motion to dismiss based upon its reading of the Seventh Circuit

case, Complaint of Sisson, 867 F.2d 341 (7th Cir. 1989). The

district court held that admiralty jurisdiction did not apply be-

cause torts involving noncommercial pleasure vessels are not

sufficiently related to traditional maritime activity within the

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

249, 93 S.Ct. 493, 34 L.Ed. 2d 454 (1972), and Foremost

Insurance Company v. Richardson, 457 U.S. 668, 102 S.Ct. 2654,

73 L.Ed. 2d 300 (1982), unless the tort involves at least a

potential threat to commercial shipping and involves navigation.

PRACTICAL CONCERNS RAISED BY THIS AMICUS

WHICH MAY NOT BE ADDRESSED BY THE PARTIES

TO THIS PETITION

The factual background to American Auto’s limitation petition

should raise concerns with this Court as to the wisdom of

adopting the Seventh Circuit’s reasoning or limiting this Court’s

expansive language in Foremost. The facts presented in American

Auto, which this Court could consider at least in the context of

raising hypothetical problems, illustrate the difficulty in interpret-

ing Foremost restrictively.

As reflected by the district court opinion in Jn the Matter of the

Complaint of American Auto, Inc., and in the briefs and record

with the Ninth Circuit in that appeal (Court of Appeals No. 89-

15689), the following facts were introduced on the admiralty

jurisdictional issue in the American Auto case.

(1) The yacht ANTICIPATION, owned by American Auto,

burned and sank at night while at her moorage off the coast of

Cabo San Lucas, Mexico, on January 9, 1988.

(2) The mooring to which the ANTICIPATION was at-

tached on the night of the fire was located in an open harbor,

fronting the Pacific Ocean. The vessel was anchored hundreds of

yards from the shore in the outer harbor of Cabo San Lucas, in

the vicinity of the main shipping channel leading to the inner

4

harbor. Commercial vessels, such as large passenger ferries,

fishing boats and passenger cruise line shore boats transit the

main ship channel to enter the Cabo San Lucas inner harbor.

(3) At the time of the loss, the vessel had seven people on

board, including two professional crew members.

(4) Two passengers on board the vessel died, and several of

the other people on board suffered personal injuries. The vessel

herself was a total loss.

(5) Immediately prior to the loss, the ANTICIPATION had

just completed transiting international waters in the Pacific

Ocean, having travelled from San Diego, California to Cabo San

Lucas, Mexico.

(6) The yacht ANTICIPATION was used as a meeting and

entertainment place for employees, business clients, prospective

clients and guests, as well as for pleasure and recreation. The

vessel at no time carried fare-paying passengers nor did it trans-

port any cargo for compensation.

(7) The Port Captain of Cabo San Lucas required American

Auto to mark the site of the sunken wreck with a lit buoy, on the

basis that it constituted a hazard to navigation.

(8) The yacht, after it sank, was ordered by the Port Captain

of Cabo San Lucas to be raised, brought to the beach and

destroyed, as a hazard to navigation.

(9) The representatives of the two deceased passengers filed

claims in the federal limitation action and separate suits in the

California courts alleging the Death on the High Seas Act

(“DOHSA”), 46 U.S.C. § 761 et. seq., as a basis of jurisdiction.

The allegations made against American Auto involve the ves-

sel’s operation, management, maintenance, and seaworthiness.

The claimants in American Auto have alleged, among other

matters, that the vessel owner (1) failed to maintain a seaworthy

vessel, particularly in regard to her fire warning systems, extin-

guishing systems and available escape routes, (2) failed to hire

and train a competent, professional crew, (3) failed to maintain a

5

proper lookout at night, and (4) failed to conduct adequate safety

drills.

Claims have been made against American Auto in the limita-

tion action and pursuant to DOHSA. The facts in American Auto,

more dramatically than those in the Sisson case before this Court,

highlight the fact that the federal admiralty statutes operate in a

complex interplay to protect and define the rights and obligations

of the parties to maritime disputes.

CONCLUSION

American Auto respectfully requests that this Court grant it

leave to file the attached proposed Brief Amicus Curiae in

Support of Petitioner Everett A. Sisson on the basis that Amicus

Curiae American Auto can present to this Court a different

perspective which illustrates the difficulty of applying the Seventh

Circuit jurisdictional tests, and their adverse effect upon a multi-

tude of admiralty cases.

Dated: March 2, 1990.

Respectfully submitted,

TERENCE S. Cox

(Counsel of Record)

DENNIS J. HERRERA

Dersy, Cook, QuINBY & TWEEDT

333 Market Street, Suite 2800

San Francisco, CA 94105

(415) 777-0505

Attorneys for Amicus Curiae

American Auto, Inc.

No. 88-2041

In the Supreme Court

United States

APRIL TERM, 1990

Everett A. SISSON

Petitioner,

Vv.

BURTON B. RUBY, ET AL.

Respondents.

On Writ of Certiorari to the United States

Court of Appeal for the Seventh Circuit

BRIEF AMICUS CURIAE OF

AMERICAN AUTO, INC. IN SUPPORT

OF PETITIONER, EVERETT A. SISSON

TERENCE S. Cox

(Counsel of Record)

DENNIS J. HERRERA

DerBy, Cook, QUINBY & TWEEDT

333 Market Street, Suite 2800

San Francisco, CA 94105

(415) 777-0505

Attorneys for Amicus Curiae

American Auto, Inc.

BOWNE OF SAN FRANCISCO, INC. + 190 NINTH ST. + S.F.. CA 94103 + (415) 284-2200

TABLE OF CONTENTS

INTEREST OF THE AMICUS CURIAE.............

SUMMARY OF ARGUMENT ..................00:-

PRACTICAL CONCERNS RAISED BY THIS AMI-

CUS WHICH MAY NOT BE ADDRESSED BY THE

PARTIES TO THIS PETITION ...................

RTE ae orew bs vecedactececcccesesecccceccees

A. The Seventh Circuit Court Construed The Test For

Admiralty Jurisdiction Too Narrowly...............

l.

The Admiralty Jurisdiction Test Formulated By The

Executive Jet And Foremost Cases .............

2. Foremost Continued To Extend Admiralty Jurisdic-

tion To Noncommercial Vessels To Promote The

Uniformity Of Rules Of Conduct; It Did Not Con-

fine The Test For Admiralty Jurisdiction To A

Disruption Of Commercial Activity .............

B. The Seventh Circuit Tests Are Difficult And Uncertain

of Application, Contrary To The Requirements Of Fore-

1.

2.

Requiring That A Tortious Event Involve Naviga-

tional Error And That It Have “A Potentially Dis-

ruptive Impact” On Maritime Commerce Creates A

Vague, Unworkable Jurisdictional Test ..........

The Seventh Circuit Tests Would Exclude From

Admiralty Jurisdiction Some Cases In Which The

Alleged Wrongs Include The Negligent Operation,

Management, Maintenance And Unseaworthiness

ned bnbnncnn5é40cencddevecoeeee

The Seventh Circuit Tests Would Exclude Some

Cases In Which The Only Remedy For Deceased

Passengers’ Representatives Is Provided By The

Death On The High Seas Act..................

The Seventh Circuit Tests Would Exclude Some

Cases In Which Paid Crew Have The Status To

ee GE EE wbecccccencdgueeeceeces

12

12

13

14

TABLE OF CONTENTS

Page

5. It Is Logical, Fair, And Essential, That The Admi-

ralty Jurisdiction Test Be Sufficiently Broad To

Promote Uniform Rules Of Maritime Law Regard-

ing Fire Safety On Vessels... ............00005- 16

C. The Limitation Of Liability Act Applies To Pleasure

WE Scdunenscnccecaacekonsedcesueccéaceeccce 16

1. Rules Of Statutory Construction Dictate That Plea-

sure Vessels Are Included Within The “Any Vessel”

FO RR en ae 17

2. Logic, Public Policy and Fairness Require That

Pleasure Vessels Be Given The Benefit of The Act 18

D. The Limitation Statute Itself Provides A Basis Of

SUED kcedscWecndsbddudebeenedeccedcdecces 19

1. The Statute Directs That A Limitation Complaint

Be Filed In The District Court................. 20

2. Admiralty Jurisdiction In A Limitation Case Does

Not Depend On The Nature Of The Claims Filed 22

3. The Seventh Circuit’s Tests Would Deny Vessel

ee ae 24

Said enndé cdopedévsncedeuesincncsses 25

TABLE OF AUTHORITIES

Cases

Page

Air Transport, Etc. v. Profess. Air Traffic, Etc., 667 F.2d

eet nccaagtoeudes cecouce 17

Complaint of Sisson, 867 F.2d 341

Ee ee passim

Coryell v. Phipps, 317 U.S. 406, 63 S.Ct. 291, 87 L.Ed. 363

ivi ddticutisequesesedéentbeedecsetcceucss 18

Evansville & B.G. Packet Co. v. Chero Cola Bottling Co., 271

U.S. 19, 46 S.Ct. 379, 70 L.Ed. 805 (1926)........... 18

Ex Parte Green, 286 U.S. 437, 52 S.Ct. 602, 76 L.Ed. 1212

GE nun dncécecgecbontavasbecnescececeescesces 24

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

93 S.Ct. 493, 34 L.Ed. 2d 454 (1972).............. passim

Foremost Insurance Company v. Richardson, 457 U.S. 668,

102 S.Ct. 2654, 73 L.Ed. 2d 300 (1982)............ passim

Guidry v. Durkin, 834 F.2d 1465 (9th Cir. 1987) ........ 7

Hartford Accident & Indemnity Co. v. Southern Pacific, 273

U.S. 207, 47 S.Ct. 357, 71 L.Ed. 612 (1926).......... 23

In Re Aircrash Disaster Near Bombay, Etc., 531 F.Supp.

a os sdcucceeccccocecccecs 14

In Re Woods’ Petition, 230 F.2d 197 (2nd Cir. 1956)..... 24

In Re Young, 872 F.2d 176 (6th Cir. 1989) ............. 12

In The Matter Of The Complaint Of American Auto, Inc.,

Court of Appeals No. 89-15689 .............66065: passim

In The Matter Of The Complaint Of American Auto, Inc.,

1989 A.M.C. 1489 (N.D. Cal. 1989) ........660055. passim

In The Matter of the Complaint of Hechinger, 890 F.2d 202

nce ee ieteeeengpoeeseeaavecece 18

In the Matter of the Complaint of Keys Jet Ski, Inc. (\\th

Cir., 1990, Slip Opinion at 1525-1526.)............... 18

Just v. Chambers, 312 U.S. 383, 61 S.Ct. 687, 85 L.Ed. 903

SRE Socccesccceccescccesvocceucesésccccccecces 18

TABLE OF AUTHORITIES

Meyers v. M/V EUGENIO C., 876 F.2d 38 (Sth Cir. 1989) 11

Moyer v. Klosters Rederi, 645 F Supp. 620

GERD Fee GREED. ccccccccucécobceuseluuneaeen 14, 15

Norwich and N.Y. Trans. Co. v. Wright, 13 Wall. 104, 80

U.S. 104, 20 L.Ed. 585 (1871).................. 20, 21, 25

Nygaard v. Peter Pan Sea Foods, Inc., 701 F.2d 77 (9th Cir.

SUSE occccccecccceseéeéedsecesdekunee 15

Richardson v. Harmon, 222 U.S. 96, 32 S.Ct. 27, 56 L.Ed.

BED GRSSE) occccccccccsssccoéeeccuessannel 22

Southport Fisheries v. Saskatchewan Gov. Ins. Office. 161

F.Supp. 81 (E.D.N. Carolina 1958) ................. 11

THE HAMILTON, 207 U.S. 398, 28 S.Ct. 133,

Se Eee BOO CEBSUD ccccccccceoussecesndnebnnenel 20, 24

THE PLYMOUTH, 3 Wall 20, 70 U.S. 20, 18 L.Ed. 125

(UBEED . ccccccccccccescedeuesadenunnneneee 7

Statutes

B UBL. OD ..0cccccccucceunnunneeeee 17

Limitation of Liability Act, 46 U.S.C. § 183 et. seg. . . . .2, 3, 22

UE. GEE cc ceccescesccessennnee 17

UB. GOED ccccccccceesstessceunennaee 17

GB CABG © TED 0 oc nccccccessessonanseel 17

GE. BOD oc cccccceceésedseuccktnseel 21

le) eee 21

GG. OOD .ccccocccssscéséccsunsnaneee 22

Jones Act, 46 U.S.C. § 688 ef. seg. .... 2... 2... ee. 4, 15, 16

Death on the High Seas Act (“DOHSA”), 46 U.S.C.

9 FSS GID ccccccccencectésuveuccseseunee passim

Treatises

Safety of Life At Sea Convention (“SOLAS”) 32 U.S.T.47 11

Vv

TABLE OF AUTHORITIES

Rules

Page

46 C.F.R.

Tee ck cwscceeccccccecccccess 11

ee eda sccddesccediecccccccecccces 11

ee ccc cccenesceseccccccccccess 11

ee ce cccbdecceccccccocecccecccces 11

ee cana cewcccceccccccccsccccoccs 11

Supreme Court Rules, Rule 36.3 ........-.--+-+++000: l

Other Authorities

Gilmore and Black, The Law of Admiralty, 2d. ed. at 846 23

Norris, “The Law of Seamen”, § 30:3, (4th ed. 1988) .... 15

No. 88-2041

In the Supreme Court

United States

APRIL TERM, 1990

EveretTrT A. SISSON

Petitioner,

Vv.

BURTON B. RuBY, ET AL.

Respondents.

On Writ of Certiorari to the United States

Court of Appeal for the Seventh Circuit

BRIEF AMICUS CURIAE OF AMERICAN AUTO, INC.

IN SUPPORT OF PETITIONER, EVERETT A. SISSON

American Auto, Inc. (“American Auto”) respectfully submits

this brief Amicus Curiae in support of the position of the peti-

tioner, Everett A. Sisson. American Auto has not been successful

in obtaining the written consent of the parties to the case, and

thereby files contemporaneously a motion requesting leave of this

Court, pursuant to Supreme Court Rule 36.3, for the filing of this

brief.

INTEREST OF THE AMICUS CURIAE

The interest of American Auto in this case arises from the fact

that American Auto is the appellant in the pending Ninth Circuit

case known as In The Matter Of The Complaint Of American

Auto, Inc., Court of Appeals No. 89-15689. The written briefing

before the Ninth Circuit has been completed in American Auto,

but no date has been assigned for oral argument. The appeal in

American Auto is from a reported district court decision, /n the

Matter of the Complaint of American Auto, Inc., 1989 A.M.C.

2

1489 (N.D. Cal. 1989). The district court dismissed the case,

adhering to the Seventh Circuit admiralty jurisdictional tests

articulated In The Matter Of The Complaint Of Sisson 867 F.2d

341 (7th Cir. 1989). American Auto does not believe that its

position will be adequately presented by the parties to the Sisson

case, within the meaning of Rule 36.3, unless this brief is

considered.

In The Matter Of The Complaint Of American Auto, Inc.,

presents the same issues that are before this Court in the present

case: First, whether torts involving noncommercial pleasure ves-

sels which pose a potential threat to commercial shipping are

sufficiently related to traditional maritime activity to permit a

federal court to exercise admiralty jurisdiction even where the tort

does not implicate navigation; and second, whether the Limitation

of Liability Act, 46 U.S.C. § 183 et. seg. independently creates

subject matter jurisdiction in the federal courts statutorily, sepa-

rate and distinct from the test for constitutional admiralty

jurisdiction.

More importantly, the facts in the American Auto case provide

a vivid illustration that the Seventh Circuit’s jurisdictional tests

would be difficult to apply and would disrupt the uniform applica-

tion of federal maritime law. American Auto believes that the

facts presented by Sisson are deceptively straightforward. Sisson

involve a vessel which burned within its sheltered marina, with no

loss of life or injury to persons. Neither was there any danger of

the inconsistent application of other federal maritime statutes.

American Auto, Inc. highlights more difficult issues. Its factual

pattern has a far closer nexus with traditional maritime activity

than is presented to this Court in Sisson, and highlights deficien-

cies in the rule adopted by the Seventh Circuit.

In American Auto, Inc., a vessel (The “ANTICIPATION”),

moored off the coast of Cabo San Lucas, Mexico in a bay open to

the Pacific Ocean, burned and sank on January 9, 1988 near a

main shipping channel, with loss of life. Suits were brought

alleging the Death on the High Seas Act, 46 U.S.C. § 761 et. seq.

(hereinafter referred to as “DOHSA”), as a basis of jurisdiction.

American Auto filed a complaint in the United States District

Court for the Northern District of California seeking exoneration

3

from or limitation of liability under 46 U.S.C. § 183 et. seq., for

injuries and/or damages arising out of the fire aboard the vessel

ANTICIPATION. Claims were filed in the limitation proceeding

by the passengers aboard the vessel who survived the fire, and by

the representatives of two deceased passengers who died as a

result of the fire. Three of the claimants moved the district court

to dismiss American Auto’s limitation complaint for lack of

subject matter jurisdiction and/or for summary judgment, arguing

both that the loss did not involve issues of traditional maritime

concern and that pleasure vessels should not be included within

the jurisdictional limits of the Limitation of Liability Act, 46

U.S.C. § 183 et. seqg., and/or the general maritime law.

On April 21, 1989, the district court granted the claimants

motion to dismiss based upon its reading of the Seventh Circuit

case, Complaint of Sisson, 867 F.2d 341 (7th Cir. 1989). The

district court held that admiralty jurisdiction did not apply be-

cause torts involving noncommercial pleasure vessels are not

sufficiently related to traditional maritime activity within the

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

249, 93 S.Ct. 493, 34 L.Ed. 2d 454 (1972); and Foremost

Insurance Company v. Richardson, 457 U.S. 668, 102 S.Ct. 2654,

73 L.Ed. 2d 300 (1982), unless the tort involves at least a

potential threat to commercial shipping and involves navigation.

The district court did not address the issue of whether or not the

Limitation of Liability Act, 46 U.S.C. § 183 ef. seg. creates an

independent, statutory basis of subject matter jurisdiction in the

federal courts, separate and distinct from the test for constitu-

tional! admiralty jurisdicti

American Auto suggests that it is important for this Court to

recognize the impact that its forthcoming opinion will have upon

cases which are currently being adversely affected by the newly

fashioned Seventh Circuit jurisdictional tests. The district court

decision in American Auto exemplifies the logical inconsistencies

that result from attempting to apply the Seventh Circuit rule to

differing factual situations.

4

SUMMARY OF ARGUMENT

1. The Seventh Circuit interpreted the language in Foremost

in an overly restrictive manner, in concluding that admiralty tort

jurisdiction in cases involving pleasure vessels extends only to

those cases which involve navigational wrongs and which have a

potentially disruptive impact on commercial activity. In cases

involving pleasure vessels, such an approach improperly restricts

the definition of traditional maritime activity to only those cases

directly involving collisions or those involving interpretations of

navigational rules of the road.

2. The Seventh Circuit, by misconstruing this Court’s deci-

sions on admiralty jurisdiction (Executive Jet and Foremost), has

3. The Seventh Circuit’s jurisdictional tests, if adopted by this

Court, would result in a patchwork application of state and federal

law to the same tortious event. American Auto illustrates that if

the Seventh Circuit’s tests are followed, when a single vessel

burns and sinks in foreign waters, representatives of any decedents

would be restricted to remedies permitted under DOHSA and the

professional crew’s rights and remedies would be defined by the

Jones Act, 46 U.S.C. § 688 et. seq., yet the vessel owner would be

deprived of admiralty jurisdiction, in any forum, to file its petition

for exoneration from or limitation of liability.

4. The Limitation of Liability Act provides an independent

basis of jurisdiction separate and distinct from the test necessary

for finding the existence of constitutional admiralty jurisdiction. It

provides a statutory basis for courts to exercise jurisdiction which

does not require the involvement of traditional maritime activity

within the meaning of Executive Jet and Foremost.

PRACTICAL CONCERNS RAISED BY THIS AMICUS

WHICH MAY NOT BE ADDRESSED BY THE PARTIES

TO THIS PETITION

The factual background to American Auto, Inc.’s limitation

petition, should raise concerns with this Court as to the wisdom of

adopting the Seventh Circuit’s reasoning or restricting this

5

Court’s expansive language in Foremost. The facts presented in

American Auto, which this Court could consider at least in the

context of raising hypothetical problems, illustrate the difficulty in

interpreting Foremost restrictively.

As reflected by In the Matter of the Complaint of American

Auto, Inc., supra and the briefs and record with the Ninth Circuit

in that appeal (Court of Appeals No. 89-1568$,, the following

facts were introduced on the admiralty jurisdictional issue in the

American Auto case.

(1) The yacht ANTICIPATION, owned by American Auto,

Inc. burned and sank at night while at her moorage off the coast

of Cabo San Lucas, Mexico, on January 9, 1988.

(2) The mooring to which the ANTICIPATION was at-

tached on the night of the fire was located in an open harbor,

fronting the Pacific Ocean. The vessel was anchored hundreds of

yards from the shore in the outer harbor of Cabo San Lucas, in

the vicinity of the main shipping channel leading to the inner

harbor. Commercial vessels, such as large passenger ferries,

fishing boats and passenger cruise line shore boats transit the

main ship channel to enter the Cabo San Lucas inner harbor.

(3) At the time of the loss, the vessel had seven people on

board, including two professional .rew members.

(4) Two passengers on board the vessel died, and several of

the other people on board suffered personal injuries. The vessel

herself was a total loss.

(5) Immediately prior to the loss, the ANTICIPATION had

just completed transiting international waters in the Pacific

Ocean, having travelled from San Diego, California to Cabo San

Lucas, Mexico.

(6) The yacht ANTICIPATION was used as a meeting and

entertainment place for employees, business clients, prospective

clients and guests, as well as for pleasure and recreation. The

vessel at no time carried fare-paying passengers nor did it trans-

port any cargo for compensation.

6

(7) The Port Captain of Cabo San Lucas required American

Auto to mark the site of the sunken wreck with a lit buoy, on the

basis that it constituted a hazard to navigation.

(8) The yacht, after it sank, was ordered by the Port Captain

of Cabo San Lucas to be raised, brought to the beach, and

destroyed.

(9) The representatives of the two deceased passengers filed

claims in the federal limitation action and separate suits in the

California courts alleging DOHSA as a basis of jurisdiction.

The allegations made against American Auto involve the ves-

sel’s operation, management, maintenance, and seaworthiness.

The claimants in American Auto have alleged, among other

matters, that the vessel owner (1) failed to maintain a seaworthy

vessel, particularly in regard to her fire warning systems; extin-

guishing systems and available escape routes; (2) failed to hire

and train a competent, professional crew; (3) failed to maintain a

proper lookout at night; and (4) failed to conduct adequate safety

drills.

The foregoing facts and allegations portray a typical maritime

casualty involving issues which traditionally have been, and

should be resolved by admiralty courts. The Seventh Circuit's

rule applied to such maritime casualties would deny the litigants

access to the court best suited to try those issues, and, by so doing,

would jeopardize the uniformity of the United States maritime

law.

ARGUMENT

A. The Seventh Circuit Court Construed The Test For Mari-

time Jurisdiction Too Narrowly

1. The Maritime Jurisdiction Test Formulated By The Exec-

utive Jet And Foremost Cases.

Prior to the Supreme Court’s decision in Executive Jet Aviation

v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454

(1972), a tort was within admiralty jurisdiction if it occurred on

7

navigable waters. THE PLYMOUTH, 3 Wall 20, 70 U.S. 20, 36,

18 L.Ed. 125 (1865).

In Executive Jet, supra and later in Foremost supra this Court

held that a “situs” on navigable waters is not sufficient to create a

maritime tort. In addition to occurring on navigable waters, the

wrong must have “a significant connection with traditional mari-

time activity.” See, Foremost Insurance v. Richardson, supra, at

674. This “relationship” requirement has come to be known as

the “maritime nexus” requirement. Guidry v. Durkin, 834 F.2d

1465 (9th Cir. 1987).

2. Foremost Continued To Extend Admiralty Jurisdiction To

Noncommercial Vessels To Promote The Uniformity Of

Rules Of Conduct; It Did Not Confine The Test For

Admiralty Jurisdiction To A Disruption Of Commercial

Activity.

In Foremost, this Court, in upholding admiralty tort jurisdic-

tion over a collision involving two pleasure vessels, expressly noted

We also agree that there is no requirement that “the mari-

time activity be an exclusively commercial one.” . . .

Because the “wrong” here involves the negligent operation of

a vessel on navigable waters, we believe that it has a

sufficient nexus to traditional maritime activity to sustain

admiralty jurisdiction in the District Court.

Foremost Insurance v. Richardson, supra at 674.

This Court in Foremost stressed, by its own choice of italicized

words, the necessity for the uniformity of rules of conduct to be

applied to the operators of all vessels:

Although the primary focus of admiralty jurisdiction is

unquestionably the protection of maritime commerce, peti-

tioners take too narrow a view of the federal interest sought

to be protected. The federal interest iu protecting maritime

commerce cannot be adequately served if admiralty jurisdic-

tion is restricted to those individuals actually engaged in

vindicated only if a// operators of vessels on navigable waters

are subject to uniform rules of conduct. The failure to

recognize the breadth of this federal interest ignores the

potential effect of noncommercial maritime activity on mari-

time commerce [emphasis in text].

Id.

tate en ee ee ie ee a

exclusive test, i tial di ive im

wrveted potential disrupti pact of vessel

For example, if these two boats collided at the mouth of the

St. Lawrence Seaway, there would be a substantial effect on

maritime commerce, without regard to whether either boat

was actively, or had been previously, engaged in commercial

activity. Furthermore, admiralty law has traditionally been

concerned with the conduct alleged to have caused this

collision by virtue of its “navigational rules — rules that

govern the manner and direction those vessels may rightly

move upon the waters.” [Citation omitted.] The potential

disruptive impact of a collision between boats on navigable

waters, when coupled with the traditional concern that admi-

ralty law holds for navigation, compels the conclusion that

this collision between two pleasure boats on navigable waters

Id.

From the above expansive language, it is apparent that this

Court in deciding Foremost did not intend to confine its definition

of traditional maritime activity to include only collisions or cases

involving interpretations of the Rules of the Road.

The Seventh Circuit has interpreted footnote 5 to the Foremost

case in an overly restrictive manner, and has ignored the broader

language quoted above from the actual holding in the Foremost

case. Footnote 5 provides:

Fn.5. Not every accident in navigable waters that might

disrupt maritime commerce will support federal admiralty

jurisdiction. In Executive Jet, for example, we concluded that

the sinking of the plane in navigable waters did not give rise

to a claim in admiralty even though an aircraft sinking in the

9

water could create a hazard for the navigation of commercial

vessels in the vicinity. However, when this kind of potential

hazard to maritime commerce arises out of activity that

bears a substantial relationship to traditional maritime activ-

ity, as does the navigation of the boats in this case, admiralty

jurisdiction is wud

Id. at 675.

The Seventh Circuit reasoned that since the Foremost decision

mentioned that the “navigation” and “operation of a vessel” were

“traditional maritime activities”, jurisdiction was limited to cases

involving wrongs arising out of those activities. Sisson, supra, at

345. The Seventh Circuit concluded (Amicus believes incor-

rectly) that:

In our view, a persuasive interpretation of Foremost would

confine the admiralty jurisdiction in tort cases either to cases

directly involving commercial maritime activity, or to cases

involving exclusively non-commercial activities in which the

wrong (1) has a “potentially disruptive impact” on maritime

commerce and (2) involves the “traditional maritime activ-

ity” of navigation.

Id.

The Seventh Circuit emphasized how “limited its guidance”

was in deciding the jurisdictional question:

We are now presented with a case that tests the limits of the

developing admiralty nexus doctrine: Does a fire on board a

moored pleasure yacht, docked in the navigable waters of a

recreational marina on Lake Michigan, bear a significant

relationship to traditional maritime activity? Guidance from

the [Supreme] Court on this question is limited to two cases:

a collision in navigable waters between pleasure craft, that

passes the test, and the crash of a land-based airplane in

navigable waters, that fails the test.'

10

Fn. 1. We are obviously at an early stage in the development

of doctrine here. The definitional boundaries are being re-

fined through the process of inclusion and exclusion in

particular cases.

Id. at 343.

The Seventh Circuit conceded that its holding applies “

narrow reading of ‘traditional maritime activity’ limiting applica-

ee ee

broader treatment of this issue. Logically, fires aboard vessels

— even when moored — are as much a traditional maritime

concern as errors of navigation. Fire at sea, or at a mooring,

is an ancient and dreaded hazard facing mariners.

It is also somewhat puzzling to find the [Foremost] Court

using a broad phrase such as “traditional maritime activity”

in discussions that then proceed to deal only with navigation.

Id. at 34S.

The Seventh Circuit, which admitted it was heading into

uncharted legal waters, apparently did not appreciate that this

Court in Foremost spoke extensively of “navigational” and “oper-

ational” concerns in the context of a “nexus with traditional

maritime activity,” only because the facts in Foremost involved a

pleasure boat collision. One would not have expected this Court

to engage in a lengthy discourse upon maritime fires, groundings,

Saat en ee nn nS Cane of

other possible factual settings which might give rise to

jurisdiction.

There can be little doubt that fire on a vessel is regarded as one

of the greatest dangers at sea. See, Southport Fisheries v. Sas-

11

katchewan Gov. Ins. Office, 161 F Supp. 81, 83-4 (E.D.N. Caro-

lina 1958). The Seventh Circuit in this case admitted as much:

Logically fires aboard vessels — even when moored — are as

much a traditional maritime concern as errors of navigation.

Fire at sea, or at a mooring, is an ancient and dreaded hazard

facing mariners.

In the Matter of the Complaint of Sisson, supra, at 345.

Regulations promulgated by the United States Coast Guard

promote and enforce fire safety on vessels. (See 46 C.F.R.

§§ 72.03, 72.05, 72.15, 72.20 and § 76, generally.) Also, the

Safety of Life At Sea Convention (“SOLAS”), 32 U.S.T. 47, has

promulgated fire safety regulations utilized in evidence in federal

maritime tort cases. Meyers v. M/V EUGENIO C., 876 F.2d 38,

39 (Sth Cir. 1989).

It is apparent that the Seventh Circuit became trapped in its

“narrow interpretation” of traditional maritime activity, ignoring

6s GEE ten, Ghee ed Geman f Gs Pomen

Court that:

. . . petitioners take too narrow a view of the federal interest

sought to be protected. The federal interest in protecting

maritime commerce cannot be adequately served if admi-

ralty jurisdiction is teted to these individual

pp ‘al ro ivity. This i —

be fully vindicated only if all operators of vessels on naviga-

ble waters are subject to uniform rules of conduct. Foremost

v. Richardson, supra, at 674-675.

In his concurring opinion in Sisson, Judge Ripple perceived that

the majority had interpreted the language in Foremost too

‘ctively.

In my view, Foremost does not compel restricting admiralty

jurisdiction in noncommercial activities to matters directly

involving the navigation of a vessel. In Foremost, the Su-

preme Court had to deal with an incident arising out of an

alleged noncompliance with the “Rules of the Road.” How-

ever, I do not read the Supreme Court’s opinion as necessa-

rily tudi ion teh an of ' ,

12

fire, when that hazard threatens maritime commerce.

In the Matter of the Complaint of Sisson, supra, at 351.

More recently, the Sixth Circuit explicitly disagreed with

Sisson, in the case of In Re Young, 872 F.2d 176 (6th Cir. 1989):

. . we do not subscribe to the reasoning of Sisson. As Judge

Ripple points out in his concurrence, the opinion is predi-

cated on an indefensibly narrow reading of Foremost

Insurance.

Id. at 178.

B. The Seventh Circuit Tests Are Difficult And Uncertain of

Application, Contrary To The Requirements Of Foremost

1. Requiring That A Tortious Event Involve Navigational

Error And That it Have “A Potentially Disruptive Impact”

On Maritime Commerce Creates A Vague, Unworkable

Jurisdictional Test.

A vessel docked in a marina which is involved in a tort, such as

The ULTORIAN in the case presently before this Court, may not

offer dramatic appeal for inclusion within admiralty jurisdiction.

Yet, this Amicus suggests that if this Court were to attempt to

fashion a restrictive jurisdictional test, elements of which require

both “navigational” error and the potential disruption of maritime

commerce, such a test would be difficult to apply and unjust in its

effect. Does a 65-foot vessel wrecked in 35 feet of water 50 yards

from the shifting edge of a main shipping channel present a

potential disruption? A 200-foot vessel burning in 20 feet of water

450 feet from the edge of a channel? Or what about American

Auto's vessel, The ANTICIPATION, which was located adjacent

to a main shipping channel, and which subsequently was ordered

by foreign governmental authorities to be marked and removed as

a hazard to navigation?

In the Matter of the Complaint of American Auto, Inc., supra,

the uncertainty in applying the Seventh Circuit's jurisdictional

test is illustrated by the district court's decision in American Auto,

which recognized that the wreck “might” disrupt maritime com-

13

merce, but termed the chance “remote” and therefore failed to

uphold admiralty jurisdiction. If the tests are allowed to remain as

vague as stated by the Seventh Circuit, district and circuit courts

will be forced to struggle with the jurisdictional limits, on a case-

by-case basis.

2. The Seventh Circuit Tests Would Exclude From Admi-

ralty Jurisdiction Some Cases In Which The Alleged

Wrongs Include The Negligent Operation, Management,

Maintenance And Unseaworthiness Of A Vessel.

The Seventh Circuit, noting that their facts tested the “limits”

of admiralty jurisdiction (at pg. 343), addressed the agreed facts

that (1) a defective washer/dryer caused the fire, (2) the fire

occurred while the vessel was docked at a marina, (3) there were

no personal injuries or deaths, and (4) there were no allegations

regarding the negligent operation or maintenance of the vessel.

In contrast, in American Auto, (1) the cause of the fire remains

unknown; {2) the fire occurred in foreign waters on a vessel

moored hundreds of yards off shore in an open bay exposed to the

Pacific Ocean; (3) there were multiple personal injuries and

deaths, resulting in the applicability of federal maritime statutes,

other than the Limitation Act; and (4) the representatives of

deceased vessel passengers and personal injury claimants have

brought claims against the vessel owner specifically alleging the

negligent operation and maintenance of the vessel.

Literal adherence to the Seventh Circuit tests could result in a

district court finding, just as the district court found in American

Auto, that even where there are allegations of operational negli-

gence, improper crewing, improper maintenance and unseawor-

thiness of a vessel, admiralty jurisdiction is inapplicable because

the alleged “wrongs” were not “navigational” (in that no collision

was involved) and the location of the wreck was unlikely to

disrupt maritime commerce. Historically, admiralty courts have

been concerned not only with the danger of fire at sea, but also

that vessels are properly manned, operated, managed, maintained

and are seaworthy. American Auto suggests that an adoption of

the Seventh Circuit jurisdictional tests would result in precisely

14

the lack of uniformity over the conduct of vessels that this Court

attempted to protect against in Foremost.

3. The Seventh Circuit Tests Would Exclude Some Cases In

Which The Only Remedy For Deceased Passengers’ Rep-

resentatives Is Provided By The Death On The High Seas

Act.

The Seventh Circuit tests raise the possibility that a vessel

owner could be deprived of the right to petition to limit its liability

under federal maritime law, while any deceased passengers’

representatives would be compelled to assert DOHSA as a basis

of jurisdiction. Specifically, DOHSA provides:

Whenever the death of a person shall be caused by wrongful

act, neglect, or default occurring on the high seas beyond 4

marine league from the shore of any state, or the District of

Columbia, or the territories or dependencies of the United

States, the personal representative of the decedent may

maintain his suit for damages in the District Courts of the

United States, in admiralty, for the exclusive benefit of the

decedent’s wife, husband, parent, child, or dependent relative

against the vessel, person or corporation which would have

been liable if the death had not ensued.

46 U.S.C. § 761.

The federal courts have ruled that the term “high seas” as it is

used in the above statute refers to all waters beyond the United

States coast, including off foreign countries. Jn Re Aircrash

Disaster Near Bombay, Etc., 531 F.Supp. 1175, 1183 (W.D. Wa.

1982); Moyer v. Klosters Rederi, 645 F Supp. 620, 623 (S.D. Fla.

1986) (death in the territorial waters off Mexico.) In Moyer,

decided long after the Foremost decision, the district court held

that the death of a vacationing swimmer, who suffered a heart

attack while snorkeling in Mexican waters, had “a significant

relationship to traditional maritime activity” because the swim-

mer had journeyed to Mexico on a commercial cruise line.

By illustration, in the American Auto case, the California

courts will be required to rule that DOHSA and its more

restrictive damage provisions pre-empt state wrongful death law

15

as to the two suits brought by decedents’ representatives because

of this accident. Nygaard v. Peter Pan Sea Foods, Inc., 701 F.2d

77 (9th Cir. 1983); Moyer, supra, at 624.'

If DOHSA provides the jurisdictional basis for passengers’

claims, and sets the legal standards for liability and damages, how

can it logically be held that there is no admiralty jurisdiction over

a limitation action arising from the same event? Independent

statutory schemes, such as DOHSA, the Jones Act, and the

Limitation Act, all of which apply distinctly to matters maritime,

cannot be viewed in a vacuum. The statutes operate in a complex

interplay to protect the rights and define the obligations of the

parties to maritime disputes.

4. The Seventh Circuit Tests Would Exclude Some Cases In

Which Paid Crew Have The Status To Bring Jones Act

Claims.

It is hornbook law that paid vessel crew members, such as the

captain and deckhands in the American Auto case, have the right

to bring personal injury actions against their employer under the

Jones Act, 46 U.S.C. § 688, ef. seg. Norris, “The Law of

Seamen”, § 30:3, (4th ed. 1988).

Just as with the wrongful death suits, the question must be

asked: “How can the paid captain and deckhands on a vessel have

the right to bring actions for injuries under the Jones Act, while at

the same time the vessel owner is deprived of its rights under the

Limitation of Liability Act?” The Seventh Circuit’s negative

answer to that question is reached by an overly narrow, restrictive

interpretation of the Foremost holding. This amicus believes that

the law requires that all such parties should have access to

'See also: Jennings v. Boeing Company, 660 F Supp. 796, 803 (E.D.

PA. 1987); Mancuso v. Kimex, Inc., 484 F.Supp. 453 (S.D. Fla. 1980)

(death 300 feet off the coast of Jamaica); Sanchez v. Loffland Brothers

Company, 626 F.2d 1228, 1230 (Sth Cir. 1980), cert. den., 452 U.S.

962, 101 S.Ct. 3112 (1981) (death on an inland Venezuelan lake);

Kuntz v. Windjammer “Barefoot” Cruises, Lid., 573 F.Supp. 1277

(W.D. PA. 1983); aff'd, 735 F.2d 423 (3rd Cir. 1984), cert. den., 459

U.S. 858, 105 S.Ct. 1888 (1984) (DOHSA applied to a death claim

arising out of Bahamian territorial waters).

16

admiralty courts and admiralty remedies. That result can be

achieved by rejecting the rule adopted by the Seventh Circuit.

5. It Is Logical, Fair, And Essential, That The Admiralty

Jurisdiction Test Be Sufficiently Broad To Promote Uni-

form Rules Of Maritime Law Regarding Fire Safety On

Vessels.

' Once it is acknowledged that “traditional maritime activity”

involves more than vessel navigation, it follows that any test for

admiralty jurisdiction should be fashioned to promote, not mini-

mize, uniform conduct and safety on all vessels. Such a rule can

be fashioned by this Court by elaborating upon its language in

Foremost.

The alternative would be to allow, on a case-by-case basis,

various district courts to rule disparately whether cases involving

issues of vessel maintenance, management, crewing, and multiple

other aspects of conduct related to vessel operation, should or

should not fall within the scope of admiralty jurisdiction. That

would permit decisions such as the district court’s decision in

American Auto; which deprived the vessel owner of the opportu-

nity to invoke the benefit and protection of the federal Limitation

of Liability Act, despite the fact that the claimants have alleged

the negligent operation, negligent maintenance, an incompetent

crew and/or unseaworthy condition of the vessel; that wrongful

death actions have been brought in state court by the representa-

tives of deceased passengers under DOHSA; and that the two

paid crew have the right to bring actions against the owner under

the federal Jones Act.

A holding intimating that the federal government has no

traditional concern to promote fire safety on all vessels, would

stretch all credulity. Such a holding would result in a dramatically

inequitable application of maritime statutes to all other vessel

owners involved in litigation arising out of fire on board vessels.

C. The Limitation Of Liability Act Applies To Pleasure Vessels

American Auto concurs with the position of the United States,

along with its reasoning and authorities cited, as to why the

language of the Limitation Act must be interpreted, by rules of

17

statutory construction, to include “any vessel” [Amicus Curiae of

the United States, filed in support of Petition for Writ of Certio-

rari, pp. 15-16, fn. 12]. Rather than re-briefing the same points,

American Auto restricts its comments to the following.

1. Rules Of Statutory Construction Dictate That Pleasure

Vessels Are Included Within The “Any Vessel” Language

Of The Act.

One important rule of statutory construction was stated in Air

Transport, Etc. v. Profess. Air Traffic, etc., 667 F.2d 316 (2d Cir.

1981) as follows:

First, we can presume that Congress is aware of settled

judicial constructions of existing law. Shapiro v. United

States, 335 U.S. 1, 16, 28 S.Ct. 1375, 1383, 93 L.Ed. 1787

(1948), and that it intends to retain those remedies that it

has left in place, Federal Maritime Terminals, Inc. v. Burn-

side Shipping Co., 394 U.S. 404, 412, 89 S. Ct. 1144, 1148,

22 L.Ed.2d 371 (1969).

Id. at 321.

We can presume that in 1936 Congress knew that federal

courts were construing 46 U.S.C. § 183(a) as applicable to

pleasure yachts. If Congress did not intend for the limitation

statutes to apply to pleasure yachts, the 1936 amendments were

the time to say so. Instead, Congress did the opposite. In § 183(f)

it ensured that limitation remained available for pleasure yachts

without subjecting them to the $60 per ton provisions of § 183(b).

1 U.S.C. § 3 should eliminate any dispute over the meaning of

the word “vessel”:

The word ‘vessel’ includes every description of watercraft or

other artificial contrivance used, or capable of being used, as

a means of transportation on water.

According to § 3, then, every description of watercraft qualifies

as a vessel. There is no requirement of a commercial purpose or

use. This Court has held that a yacht or pleasure craft is a vessel

under | U.S.C. § 3, Foremost, supra at 668, and that | U.S.C. § 3

should be used to define the word “vessel” as that word is used in

46 U.S.C. § 183(a). Evansville & B.G. Packet Co. v. Chero Cola

Bottling Co., 271 U.S. 19, 46 S.Ct. 379, 70 L.Ed. 805 (1926).

Based upon the above rules of statutory construction, this Court

has held the limitation statute applicable to pleasure yachts. Just

v. Chambers, 312 U.S. 383, 61 S.Ct. 687, 85 L.Ed. 903 (1941);

Coryell v. Phipps, 317 U.S. 406, 63 S.Ct. 291, 87 L.Ed. 363

(1943).

All circuit courts which have addressed the issue have con-

strued the Limitation of Liability Act as applying to pleasure

vessels. Since 1886, the Second, Fourth, Fifth, Sixth, Seventh,

Eighth, Ninth, and Eleventh Circuits have applied the Act to

pleasure vessels.’ Within only the last few months, the Ninth and

Eleventh Circuits have, by applying rules of statutory construc-

tion, upheld the Act’s application to pleasure vessels. Jn The

Matter of the Complaint of Hechinger, 890 F.2d 202, 206 (9th

Cir. 1989); In the Matter of the Complaint of Keys Jet Ski, Inc.

(11th Cir., 1990, Slip Opinion at 1525-1526.)

2. Logic, Public Policy and Fairness Require That Pleasure

Vessels Be Given The Benefit of The Act.

Neither logic nor public policy supports a practice of allowing

“commercial” interests to limit liability while denying that right

to pleasure and recreational boat owners.

In the first place, carving out a pleasure boat exception would

require that a line be drawn between “pleasure boating” and

“commercial boating.” In Foremost, this Court rejected a similar

distinction for the purpose of tort jurisdiction because of the

uncertainties sure to be created:

*See, Complaint of Interstate Towing Co.. 717 F.2d 752 (2d Cir.

1983); Richard v. Blake Builder's Supply, Inc., 528 F.2d 745 (4th Cir.

1975); Warnken v. Moody, 22 Fed 960 (Sth Cir. 1927); Gibboney v.

Wright, 517 F.2d 1054 (Sth Cir. 1975); Holloway Concrete Products Co.

v. Belts Beatty, Inc. 293 F.2d 474 (Sth Cir. 1961); Rauthbord v.

Ehmann, 190 F.2d 533 (7th Cir. 1951); Pritchett v. Kimberiling Cone,

Inc., 568 F.2d 570 (8th Cir. 1977); In Re Hechinger, 8390 F.2d 206 (9th

Cir. 1989); Petition of M/V SUNSHINE II, 808 F.2d 762 (11th Cir.

1987).

19

Yet, under the strict commercial rule proffered by petition-

ers, the status of the boats as “pleasure” boats, as opposed to

“commercial” boats, would control the existence of admi-

ralty jurisdiction. Application of this rule, however, leads to

inconsistent findings or denials of admiralty jurisdiction simi-

lar to those found fatal to the locality rule in Executive Jet.

Under the commercial rule, fortuitous circumstances such as

whether the boat was, or had ever been rented, or whether it

had ever been used for commercial fishing, control the

existence of federal-court jurisdiction. The owner of a vessel

used for both business and pleasure might be subject to

radically different rules of liability depending upon whether

his activity at the time of a collision is found by the court

ultimately assuming jurisdiction over the controversy to have

been sufficiently “commercial.” We decline to inject the

uncertainty inherent in such line-drawing into maritime

transportation. Moreover, the smooth flow of maritime com-

merce is promoted when all vessel operators are subject to

the same du_.s and liabilities.

Foremost v. Richardson, supra, at page 676.

Creating a pleasure boat exception would also constitute bad

public policy. Presumably, a vessel carrying passengers for hire

would be a commercial vessel, no matter how large or small the

vessel. The owner of such a vessel — one who charged a fee for

host who gave a friend a ride in his yacht could not. Yet, the

commercial operator would be more likely, due to regulations and

financing agreements, to carry substantial liability insurance.

Small boat owners, who, under the respondents’ theory would not

have the protection of the Act, would be more likely to be

uninsured or have low insurance limits.

D. The Limitation Statute Itself Provides A Basis Of

Jurisdiction

Limitation of liability is not a part of the traditional or constitu-

tional United States admiralty law. Limitation of liability is a

concept and a proceeding first established by statute in 1851. In

Norwich and N.Y. Trans. Co. v. Wright, 13 Wall. 104, 80 U.S.

20

104, 20 L.Ed. 585 (1871), this Court acknowledged the statutory

basis of a limitation action:

The court having jurisdiction of the case under and by virtue

of the Act of Congress, would have the right to enforce its

jurisdiction and to ascertain and determine the rights of the

parties.

Id. at 592.

In THE HAMILTON, 207 U.S. 398, 28 S.Ct. 133, 52 L.Ed.

264 (1907), this Court again recognized the statutory basis of the

Act’s jurisdiction:

In this case the statutes of the United States have enabled

the owner to transfer its liability to a fund and to the

exclusive jurisdiction of the admiralty, and it has done so.

Id. at 406.

In Executive Jet, supra, this Court considered traditional or

constitutional admiralty jurisdiction in maritime tort cases. In at

least two places the opinion recognizes an independent statutory

basis for admiralty jurisdiction. First, this Court held:

...[t)hat unless such a relationship exists, claims arising

from airplane accidents are not cognizable in admiralty in

the absence of legislation to the contrary.

Id. at 268.

Later, this Court averred that:

. Congress is free under the Commerce Clause to enact

legislation applicable to all such accidents, whether occurring

on land or water, and adapted to the specific characteristics

of air commerce.

Id. at 274.

1. The Statute Directs That A Limitation Complaint Be

Filed In The District Court.

As originally enacted in 1851 the limitation statutes did not

specify the court which would enforce or apply them. The only

reference to legal action was the provision that “. . . the owner or

21

owners of the vessel, or any of them, may take the appropriate

proceedings in any court. . ..” found in 46 U.S.C. § 184. This

“appropriate proceedings.”

United States with the jurisdiction of such cases by bill in

equity, but it did not. It is also evident that the State Courts

have not the requisite jurisdiction. Unless, therefore, the

district courts themselves can administer the law, we are

reduced to the dilemma of inferring that the Legislature has

passed a law which is incapable of execution. This is never to

be done if it can be avoided. We have no doubt that the

district courts, as courts of admiralty and maritime jurisdic-

tion, have jurisdiction of the matter, and this Court, un-

doubtedly, has the power to make all needful rules and

regulations for facilitating the course of proceeding.

Norwich & N.Y. Trans. Co. v. Wright, supra, at 592.

In 1936 Congress amended 46 U.S.C. § 185 to specifically set

forth the procedure to be followed by a vessel owner to claim

limitation of liability. C ded the following | va

Section 185:

The vessel owner, within six months after a claimant shall

have given to or filed with such owner written notice of

claim, may petition a district court of the United States of

competent jurisdiction for limitation of liability within the

provisions of this chapter...

In Executive Jet, this Court recognized the power of Congress

to enlarge admiralty jurisdiction, Executive Jet, supra, at 274. The

limitation statute is legislation which enlarges the admiralty

jurisdiction. Consequently, the limitation of liability case falls

squarely within the “legislation to the contrary” exception to

Executive Jet.’

*Two district courts have recognized the “legislation to the contrary”

exception, Jn Re Aircraft Disaster Near Bombay, 53\ F.Supp. 1175,

1182-84 (W.D. Wa. 1982), Friedman v. Mitsubishi Aircraft Intern., 678

F.Supp. 1064, 1065 (S.D.N.Y. 1988).

22

2. Admiralty Jurisdiction In A Limitation Case Does Not

Depend On The Nature Of The Claims Filed.

Section 183 of the limitation statute provides that a shipowner

may limit his liability for any loss or destruction of property, or

any loss, damage or injury by collision or for any act, matter, or

thing, loss, damage or forfeiture done, occasioned or incurred

without the owner’s privity or knowledge. In 46 U.S.C. § 189 it is

further provided that the individual liability of a shipowner shall

be limited to the proportion of “any or all debts and liabilities that

his individual share of the vessel bears to the whole.”

Nowhere does the statute say that the only claims subject to

limitation are claims which could have been asserted against the

owner in admiralty. The statute does not say the owner may limit

only against claims arising out of traditional maritime activities.

On the contrary, this Court held that the addition of § 189 to the

statute in 1884 “was intended to add to the enumerated claims of

the old law any ‘and all debts and liabilities’ not theretofore

included” and “whether the liability be strictly maritime or from

a tort non-maritime.” Richardson v. Harmon, 222 U.S. 96, 105-

06, 32 S.Ct. 27, 56 L.Ed. 110 (1911). The limitation statute,

then, encompasses all claims occurring without the privity or

knowledge of the shipowner, whether they be maritime claims or

not. Richardson expressly decided that the statute allows a

shipowner to maintain a limitation action in admiralty to limit his

liability for non-maritime torts. /d.

This Amicus suggests that caution be exercised regarding this

Court’s reconsideration of the Richardson decision. That decision

was not a judicial definition of district court jurisdiction. It was an

interpretation of a federal statute. The Richardson Court held

that Congress, in adding § 189, intended to include non-maritime

claims within the scope of the Limitation Act. Nothing has

happened since the time of the Richardson decision to justify or

necessitate a re-examination of Congressional intent. To the

contrary, Congress has tacitly agreed with this Court's interpreta-

tion by periodically amending the Limitation Act without chang-

ing the Richardson rule.

23

The correctness of the Richardson decision is illustrated by the

following: Following Richardson, (1) there have been, until

recent years, relatively few jurisdictional inconsistencies over the

seventy-nine years the federal courts have interpreted jurisdiction

under The Act, (2) the federal courts have been able, through the

limitation concursus procedure, to join all claimants, whether

maritime or non-maritime, in a single, orderly action, with a

single common fund, to be appropriately distributed among com-

peting claims, and (3) vessel owners have been able to depend

upon the rule that all of their liabilities, whether maritime or non-

maritime, may be resolved without being burdened with the

might be deemed “non-maritime” and therefore not subject to

limitation. Overruling Richardson at this late date not only would

be unwarranted by any accepted principle of statutory construc-

tion but would disrupt a pattern of practice to which admiralty

courts have been able to apply consistently to create a coherent

body of maritime law.

This Court has repeatedly described the broad powers and

jurisdiction of the admiralty courts in limitation cases:

But this limitation of liability proceeding differs from the

ordinary admiralty suit, in that by reason of the statute and

rules, the court of admiralty has power (citations omitted) to

do what is exceptional in a court of admiralty — to grant an

injunction, and by such injunction bring litigants, who do not

have claims which are strictly admiralty claims, into the

admiralty court.

Hartford Accident & Indemnity Co. v. Southern Pacific, 273

U.S. 207, 220; 47 S.Ct. 357, 71 L.Ed. 612, 617 (1926).

In this case the statutes of the United States have enabled

the owner to transfer its liability to a fund and to the

exclusive jurisdiction of the admiralty, and it has done so.

That fund is being distributed. In such circumstances all

claims to which the admiralty does not deny existence must

be recognized, whether admiralty liens or not. This is not

only a general principle, but is the result of the statute which

24

provides for, as well as limits, the liability, and allows it to be

proved against the fund.

THE HAMILTON, 207 U.S. 398, 406, 28 S.Ct. 407, 52

L.Ed. 264, 270 (1907).

In fact, the rule is so well established that Gilmore and Black

State:

“The hornbook law of the matter today is that § 189: (1)

extended the Limitation Act to cover non-maritime claims

Gilmore and Black, The Law of Admiralty, 2d edition at 846.

Under all the foregoing authorities it is clear that the Limita-

exist solely under an analysis of constitutional admiralty jurisdic-

tion. The Seventh Circuit erred in failing to recognize this

listincti

3. The Seventh Circuit’s Tests Would Deny Vessel Owners

Due Process.

In Executive Jet and in Foremost this Court was deciding

which of two court systems (federal court sitting in admiralty or

state court) was the proper one in which the plaintiff should have

filed his action. In Executive Jet the plaintiff's action was dis-

missed because he made a mistake; he sued in the wrong court.

The decision left him free to pursue his remedy in a proper court.

By contrast, if the Seventh Circuit's decision stands in this case,

petitioner will be unable to litigate his statutory limitation rights

in any court.

A petitioner has a right, under the limitation statute, to file an

action to claim limitation and to have that right to limitation tried

and adjudicated. A state court may not decide whether a ship-

owner is entitled to limitation. Ex Parte Green, 286 U.S. 437, 52

S.Ct. 602, 76 L.Ed. 1212 (1931); In Re Woods’ Petition, 230 F.2d

197 (2d Cir. 1956). The effect of the Seventh Circuit's decision is

to deprive vessel owners of a substantive right without duc

process, or any process at all. Vessel owners cannot proceed in

state court to claim the benefit of the limitation statute. If a vessel

be done if it can be avoided.” awe.

CONCLUSION

Amicus American Auto respectfully submits that the Seventh

Circuit, in dismissing for lack of admiralty jurisdiction: (1)

SEE eases ada eGeentaie a

Dersy, Coox, Quinsy & TWEEDT

333 Market Street, Suite 2800

San Francisco, CA 94105

(415) 777-0505

Attorneys for Amicus Curiae

American Auto, Inc.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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