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
ey GD CED BED hcdncwnceaveavesseueedeesecs l
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.
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