TULANE LAW SCHOOL. Rhodes, Greece. Maritime Law, Law of the Sea & Ocean Management SUMMER, LGRC Maritime Personal Injury

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1 TULANE LAW SCHOOL Rhodes, Greece Maritime Law, Law of the Sea & Ocean Management SUMMER, 2015 LGRC Maritime Personal Injury Professor degravelles These materials are intended for classroom and study purposes only for students enrolled in Tulane s Rhodes Summer Program and may not be reproduced.

2 WARNING CONCERNING COPYRIGHT RESTRICTIONS The Copyright Law of 1976 (United States Code, Title 17) governs the making of photocopies or other reproductions of copyrighted material. Under certain conditions specified in the law, libraries and archives are authorized to furnish a photocopy or other reproduction. One of these specific conditions is that the photocopy or reproduction is not to be "used for any purpose other than private study, scholarship, or research." If a user makes a request for, or later uses, a photocopy or reproduction [including that made by electronic transmission of reserve material] for purposes in excess of "fair use," that user may be liable for copyright infringement.

3 TULANE LAW SCHOOL - RHODOS I Maritime Personal Injury and Death May-June, 2015 READING ASSIGNMENTS Day 1, Monday, May 18, 2015 (for Day 2, Tuesday, May 19, 2015) Day 2, Tuesday, May 19, 2015 (for Day 3, Wednesday, May 20, 2015) Day 3, Wednesday, May 20, 2015 (for Day 4, Thursday, May 21, 2015) Day 4, Thursday, May 21, 2015 (for Day 5, Friday, May 22, 2015) Day 5, Friday, May 22, 2015 (for Day 6, Monday, May 25, 2015) Day 6, Monday, May 25, 2015 (for Day 7, Tuesday, May 26, 2015) Day 7, Tuesday, May 26, 2015 (for Day 8, Wednesday, May 27, 2015) Day 8, Wednesday, May 27, 2015 (for Day 9, Thursday, May 28, 2015) Day 9, Thursday, May 28, 2015 (for Day 10, Friday, May 29, 2015) Day 10, Friday, May 29, 2015 (for Day 11, Monday, June 1, 2015) Day 11, Monday, June 1, 2015 (for Day 12, Tuesday, June 2, 2015) Day 12, Tuesday, June 2, 2015 (for Day 13, Wednesday, June 3, 2015) Day 13, Wednesday, June 3, 2015 (for Day 14, Thursday, June 4, 2015) EXAM - Friday, June 5, 2015

4 MARITIME TORTS: THE LAW OF SEAMEN, MARITIME PERSONAL INJURY AND DEATH Table of Contents I. INTRODUCTION/OVERVIEW A. Introduction Historical Roots and Development of Maritime Law Overview of Remedies in American Maritime Tort Law B. Jurisdiction Maritime Jurisdiction Generally Article III, 1 and 2, United States Constitution U.S.C Jurisdiction and Choice of Law American Dredging Company v. Miller, 114 S.Ct. 981 (1994) Maritime Tort Jurisdiction U.S.C Admiralty Extension Act Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 115 S.Ct (1995) II. SEAMAN STATUS A. "Vessel" Lozeman v. City of Riviera Beach, Florida, 133 S. Ct. 735 (2013) B. Photographs and Diagrams of Various Kinds of Drilling and Related Vessels C. "Fleet of Vessels" Harbor Tug and Barge Co. v. Papai, 117 S.Ct (1997) i

5 Wisner v. Professional Divers of New Orleans, 731 So.2d 200 (La. 1999) D. "In Navigation" Desper v. Starved Rock Ferry Co., 72 S.Ct. 216 (1952) Chandris, Inc. v. Latsis, 115 S.Ct (1995), Section III only E. Significant Employment Relationship with Vessel or Fleet of Vessels Chandris, Inc. v. Latsis, 115 S.Ct (1995) F. Contributing to Function of Vessel McDermott Int'l., Inc. v. Wilander, 111 S.Ct. 807 (1991) G. "Pseudo-Seaman" or Seaman Pro Hac Vice Note III. SEAMEN'S REMEDIES A. Introduction/Overview The Osceola, 23 S.Ct. 483 (1903) B. Maintenance and Cure Koistinen v. American Export Lines, Inc., 194 Misc. 942; 83 N.Y.S.2d 297; 1948 N.Y. Misc. LEXIS 3334 (1948) Notes: Injuries on Land and Service of the Ship Note Jefferson v. Baywater Drilling, LLC, 2015 WL (E.D. La. 2015) th Johnson v. Cenac Towing, Inc., 544 F. 3d 296 (5 Cir. 2008) Notes Farrell v. United States, 69 S.Ct. 707 (1949) Vella v. Ford Motor Co., 95 S.Ct (1975) ii

6 Atlantic Sounding Co., Inc. v. Townsend, 129 S.Ct (2009) C. Unseaworthiness Notes Mitchell v. Trawler Racer, Inc., 80 S.Ct. 926 (1960) Usner v. Luckenbach Overseas Corp., 91 S.Ct. 514 (1971) D. Jones Act - Substance The Jones Act, 46 U.S.C (formerly 46 U.S.C. 688) Note Ferguson v. Moore-McCormack Lines, Inc., 77 S.Ct. 457 (1957) Kernan v. American Dredging Co., 78 S.Ct. 394 (1958) Note th Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5 Cir. 1997) Notes IV. TORT REMEDIES UNDER LHWCA A. Status Under LHWCA USC 902(1) - (3) USC 903 (a) USC 905 (b) USC 933(a) Northeast Marine Terminal Co., Inc. v. Caputo, 97 S.Ct (1977) Director, Office of Workers' Compensation Programs, United States Department of Labor v. Perini North River Associates, 103 S.Ct. 634 (1983) Note iii

7 B. Tort Remedies Under LHWCA Against Vessel Owner USC 905(b) Seas Shipping Co., Inc. v. Sieracki, 66 S.Ct. 872 (1946) Scindia Steam Navigation Co., Ltd. v. De Los Santos, 101 S.Ct (1981) C. Tort Remedies Under LHWCA Against Employer Which Is Vessel Owner Notes th Pichoff v. Bisso Towboat Co., Inc., 748 F.2d 300 (5 Cir. 1984) D. Tort Remedies Under LHWCA Against Third Persons U.S.C. 933(a) E. Miscellaneous Issues Under LHWCA Note: Contribution and Indemnity V. PLATFORM AND OTHER WORKERS A. Outer Continental Shelf Lands Act U.S.C. 1333(a), (d) and (f) Laws and Regulations Governing Lands B. Platform Workers Rodrigue v. Aetna Casualty and Surety Co., 89 S.Ct (1969) th Alleman v. Omni Energy Services Corp., 580 F.3d 280 (5 Cir. 2009) U.S.C. 1333(b) Note: RE: Pacific Operators Offshore, LLP v. Valladolid, 132 S. Ct. 680 (2012) U.S.C C. "Other" Workers th Green v. Vermilion Corp., 144 F.3d 332 (5 Cir. 1998) iv

8 VI. GENERAL MARITIME TORT LAW A. Negligence Kermarec v. Compagnie Generale Transatlantique, 79 S.Ct. 406 (1959) B. Products Liability East River Steamship Corp. v. TransAmerica Delaval, Inc., 106 S.Ct (1986) VII. MARITIME DEATH ACTIONS A. Introduction/Overview B. Death on the High Seas Act (46 U.S.C , formerly 46 U.S.C ) Note Offshore Logistics, Inc. v. Tallentire, 106 S.Ct (1986) Note: Jury Trial Mobil Oil Corp. v. Higginbotham, 98 S.Ct (1978) Note C. Jones Act Wrongful Death Cause of Action Note D. General Maritime Causes of Action for Wrongful Death Moragne v. States Marine Lines, Inc., 90 S.Ct (1970) Miles v. Apex Marine Corp., 110 S.Ct (1990) Note E. Application of State Death Actions in Maritime Cases Yamaha Motor Corp. U.S.A. v. Calhoun, 116 S.Ct. 619 (1996) v

9 VIII. DAMAGES A. Special Issues Exxon Shipping Company v. Baker, 128 S.Ct (2008) Cooper Stevedoring Co., Inc. v. Fritz Kopke, Inc., 94 S.Ct (1974) Edmonds v. Compagnie Generale Transatlantique, 99 S.Ct (1979) McDermott, Inc. v. AmClyde, 114 S.Ct (1994) U.S.C Interest IX. PROCEDURAL QUESTIONS A. Federal vs. State Court; Saving to Suitors ; Rule 9(h) U.S.C B. Jury Trial; FRCP Rule 9(h) Rule 9(h). Pleading Special Matters - Admiralty and Maritime Claims Fitzgerald v. United States Lines Co., 83 S.Ct (1963) C. Statute of Limitations Bourgeois v. Weber Marine, LLC, 2015 WL (M.D. La. 2015) U.S.C. 763a. Limitations X. PUTTING IT ALL TOGETHER degravelles, John W. and J. Neale degravelles, THE DEEPWATER HORIZON RIG DISASTER: ISSUES OF PERSONAL INJURY AND DEATH, Tulane Law Review, Volume 85, Number 4, March 2011, vi

10 NOTE All materials reproduced from MARITIME LAW DESKBOOK by Charles M. Davis are reprinted with permission of Compass Publishing Company, Seattle, WA. All quoted text accompanying photographs of drilling rigs and platforms is reprinted with permission of the Petroleum Extension Service (PETEX), The University of Texas at Austin, Austin, TX.

11 MARITIME TORTS: THE LAW OF SEAMEN, MARITIME PERSONAL INJURY AND DEATH A. Introduction I. INTRODUCTION/OVERVIEW 1. Historical Roots and Development of Maritime Law Legal historians believe that a highly developed system of maritime law existed in ancient times and centered around the basin of the Mediterranean Sea. "In the Hellenistic period, the island of Rhodes and the City of Alexandria were noted centers of maritime activity and law. The Greek maritime law was based upon constantly recurring customs and transactions between buyers, sellers, shipowners, crews and bankers." 1 The Rhodian Sea Code is one of the earliest maritime codes. Some scholars contend that despite its 2 name, the Rhodian Sea Code was of Byzantine, not Rhodian, origin. While there may not have been a codification of maritime law by the Rhodians, scholars agree that Rhodes was a great maritime center and its influence in the area of maritime law was great. "It is interesting that those who compiled the Byzantine maritime code in the eighth century A.D. felt impelled to name it after Rhodes to add to its authority." 3 Special courts sat in Mediterranean port towns to judge disputes arising among seafaring people. The 4 judgments in individual cases were eventually recorded and customary rules were codified. One of these codes was the Laws of Oleron which were introduced into England by Richard I upon his return from the 5 Holy Land. This is of special importance to maritime students in the United States since much of our maritime law is derived from English law. Admiralty courts originated in England during the reign of Edward III. The Admiral was the highest ranking naval officer whose authority came directly from the sovereign. The original jurisdiction of the Admiral was of a disciplinary nature over the crews of the vessels under his command. This jurisdiction was expanded to include torts and offenses on the high seas and in ports within the ebb and flow of the tide, as 1 th Thomas J. Schoenbaum, ADMIRALTY AND MARITIME LAW, 4 Ed., Vol. 1, pp. 3-4 (West, A Thomson Business, St. Paul, MN 2004). 2 3 Id. at 4-5. Id. at 6. 4 nd Grant Gilmore, Charles L. Black, Jr., THE LAW OF ADMIRALTY, 2 Ed., p. 5 (The Foundation Press, Inc., Mineola, NY 1975). 5 th Robert Force, Martin J. Norris, THE LAW OF SEAMEN, 5 Ed., Vol. 1, p. 1-3 (West, A Thomson Business, St. Paul, MN 2003). -1-

12 well as over contracts within the Laws of Oleron. 6 In the United States, the drafters of the Constitution felt there should be a system of national admiralty courts and extended the judicial power of the United States to "all cases of admiralty and maritime jurisdiction." 7 2. Overview of Remedies in American Maritime Tort Law Maritime law has developed over the years to keep pace with the expansion of industry and commerce in areas involving navigable waters. Particularly important in this regard has been the virtual explosion of exploration and development of oil and gas on the sea bottoms off the coast of this continent and navigable waters in other areas of the world. From a time when maritime law was concerned primarily with traditional "blue water" vessels, the seaman who "manned, reffed and steered" them as well as the longshoremen who loaded and offloaded them, much of today's grist of maritime courts concerns the resolution of disputes growing from the injuries and deaths of a wide variety of workers who in many cases bear scant resemblance to the traditional blue water seaman. Maritime personal injury law has always provided a remedy for non-workers such as passengers and invitees injured aboard vessels. The law with respect to this class of plaintiffs is fairly straightforward: general maritime law which, in many instances, mirrors the common law. Hence such familiar concepts as the duty to act with reasonable care, pure comparative negligence, and even the law of strict products liability as it has been developed in common law courts are very much a part of the general maritime law as it governs such non-workers. However, such cases are relatively few when compared to the judicial effort spent sifting and sorting various kinds of workers and determining the appropriate law which should apply to each. The lines which have been drawn to distinguish between the various types of workers are often illdefined. The remedies provided are often dramatically different depending upon which side of this line a maritime worker is ultimately found to fall. Much of the substance of maritime law and thus much of the information found in these course materials concerns itself with the status of maritime workers and the tests which have developed (and continue to develop) to determine the status of these workers. Is the potential plaintiff a seaman, a longshoreman, a platform worker, a land-based worker, a "pseudo-seaman"? What law applies to each? There is perhaps no other area of the law where status determination is so difficult and so outcome-determinative. The maritime lawyer must avoid becoming lost at sea in these often turbulent waters, and these materials will hopefully help in the charting of an accurate course to safe port. In doing so, these materials will address maritime jurisdiction and the foundation for the maritime tort law, as well as the major statutory and jurisprudential remedies given to the various classes of maritime tort litigants. These include remedies available to seamen: the right to maintenance and cure, the right to recover for injuries caused by an unseaworthy vessel, the Jones Act and various wage remedies. Tort and workers' compensation remedies afforded offshore platform workers, longshoremen, ship repairers and other kinds of maritime workers, as well as the tort remedies available to non-workers will also be covered. The defenses available to maritime defendants will be reviewed, as will procedural and practice pointers 6 7 Id. at 1-4. U.S. Constitution Art. III

13 applicable to all maritime litigants. B. Jurisdiction Article III. 1. Maritime Jurisdiction Generally Section. 1. The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish... Section. 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. * * * 28 U.S.C.A Admiralty, maritime and prize cases The district courts shall have original jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled. (2) Any prize brought into the United States and all proceedings for the condemnation of property taken as prize. 2. Jurisdiction and Choice of Law 114 S.Ct. 981 AMERICAN DREDGING COMPANY v. William Robert MILLER. No Argued Nov. 9, Decided Feb. 23, Justice SCALIA delivered the opinion of the Court. This case presents the question whether, in admiralty cases filed in a state court under the Jones Act, 46 U.S.C.App. 688, and the "saving to suitors clause," 28 U.S.C. 1333(1), federal law pre-empts state law regarding the doctrine of forum non conveniens. I Respondent William Robert Miller, a resident of Mississippi, moved to Pennsylvania to seek employment in He was hired by petitioner American Dredging Company, a Pennsylvania corporation with its principal place of business in New Jersey, to work as a seaman aboard the MV John R., a tug operating on the Delaware River. In the course of that employment respondent was injured. After receiving medical treatment in Pennsylvania and New York, he returned to Mississippi where he continued to be treated by local physicians. On December 1, 1989, respondent filed this action in the Civil District Court for the Parish of Orleans, Louisiana. He sought relief under the Jones Act, which authorizes a seaman who suffers personal injury "in the course of his employment" to bring "an action for damages at law," 46 U.S.C.App. 688(a), and over which state and federal -3-

14 courts have concurrent jurisdiction. See Engel v. Davenport, 271 U.S. 33, 37, 46 S.Ct. 410, 412, 70 L.Ed. 813 (1926). Respondent also requested relief under general maritime law for unseaworthiness, for wages, and for maintenance and cure. See McAllister v. Magnolia Petroleum Co., 357 U.S. 221, 224, 78 S.Ct. 1201, 1203, 2 L.Ed.2d 1272 (1958) (setting forth means of recovery available to injured seaman). The trial court granted petitioner's motion to dismiss the action under the doctrine of forum non conveniens, holding that it was bound to apply that doctrine by federal maritime law. The Louisiana Court of Appeal for the Fourth District affirmed. 580 So.2d 1091 (1991). The Supreme Court of Louisiana reversed, holding that Article 123(C) of the Louisiana Code of Civil Procedure, which renders the doctrine of forum non conveniens unavailable in Jones Act and maritime law cases brought in Louisiana state courts, is not preempted by federal maritime law. 595 So.2d 615 (1992). American Dredging Company filed a petition for a writ of certiorari, which we granted. 507 U.S. 1028, 113 S.Ct. 1840, 123 L.Ed.2d 466 (1993). II The Constitution provides that the federal judicial power "shall extend... to all Cases of admiralty and maritime Jurisdiction." U.S. Const., Art. III, 2, cl. 1. Federal-court jurisdiction over such cases, however, has never been entirely exclusive. The Judiciary Act of 1789 provided: "That the district courts shall have, exclusively of the courts of the several States... exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction... within their respective districts as well as upon the high seas; saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it. " 9, 1 Stat (emphasis added). The emphasized language is known as the "saving to suitors clause." This provision has its modern expression at 28 U.S.C. 1333(1), which reads (with emphasis added): "The district courts shall have original jurisdiction, exclusive of the courts of the States, of: "(1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled. " We have held it to be the consequence of exclusive federal jurisdiction that state courts "may not provide a remedy in rem for any cause of action within the admiralty jurisdiction." Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 124, 44 S.Ct. 274, 277, 68 L.Ed. 582 (1924). An in rem suit against a vessel is, we have said, distinctively an admiralty proceeding, and is hence within the exclusive province of the federal courts. The Moses Taylor, 4 Wall. 411, 431, 18 L.Ed. 397 (1867). In exercising in personam jurisdiction, however, a state court may " 'adopt such remedies, and... attach to them such incidents, as it sees fit' so long as it does not attempt to make changes in the 'substantive maritime law.' " Madruga v. Superior Court of Cal., County of San Diego, 346 U.S. 556, 561, 74 S.Ct. 298, 301, 98 L.Ed. 290 (1954) (quoting Red Cross Line, supra, 264 U.S., at 124, 44 S.Ct., at 277). That proviso is violated when the state remedy "works material prejudice to the characteristic features of the general maritime law or interferes with the proper harmony and uniformity of that law in its international and interstate relations." Southern Pacific Co. v. Jensen, 244 U.S. 205, 216, 37 S.Ct. 524, 529, 61 L.Ed (1917). The issue before us here is whether the doctrine of forum non conveniens is either a "characteristic feature" of admiralty or a doctrine whose uniform application is necessary to maintain the "proper harmony" of maritime law. We think it is neither. Under the federal doctrine of forum non conveniens, "when an alternative forum has jurisdiction to hear [a] case, and when trial in the chosen forum would 'establish... oppressiveness and vexation to a defendant... out of all proportion to plaintiff's convenience,' or when the 'chosen forum [is] inappropriate because of considerations affecting the court's own administrative and legal problems,' the court may, in the exercise of its sound discretion, dismiss the case," even if jurisdiction and proper venue are established. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241, 102 S.Ct. 252, 258, 70 L.Ed.2d 419 (1981) (quoting Koster v. (American) Lumbermens Mut. Casualty Co., 330 U.S. 518, 524, 67 S.Ct. 828, 831, 91 L.Ed (1947)). * * * In sum, the doctrine of forum non conveniens neither originated in admiralty nor has exclusive application there. To the contrary, it is and has long been a doctrine of general application. Louisiana's refusal to apply forum non conveniens does not, therefore, work "material prejudice to [a] characteristic featur[e] of the general maritime law." Southern Pacific Co. v. Jensen, 244 U.S., at 216, 37 S.Ct., at 529. B. Petitioner correctly points out that the decision here under review produces disuniformity. As the Fifth Circuit noted in Ikospentakis v. Thalassic S. S. Agency, 915 F.2d 176, 179 (1990), maritime defendants "have access to a forum non conveniens defense in federal court that is not presently recognized in Louisiana state courts." We must therefore consider whether Louisiana's rule "interferes with the proper harmony and uniformity" of maritime law, Southern Pacific Co. v. Jensen, supra, 244 U.S., at 216, 37 S.Ct., at 529. A -4-

15 In The Lottawanna, 21 Wall. 558, 575, 22 L.Ed. 654 (1875), Justice Bradley, writing for the Court, said of the Article III provision extending federal judicial power "to all Cases of admiralty and maritime Jurisdiction": "One thing... is unquestionable; the Constitution must have referred to a system of law coextensive with, and operating uniformly in, the whole country. It certainly could not have been the intention to place the rules and limits of maritime law under the disposal and regulation of the several States, as that would have defeated the uniformity and consistency at which the Constitution aimed on all subjects of a commercial character affecting the intercourse of the States with each other or with foreign states." By reason of this principle, we disallowed in Jensen the application of state workers' compensation statutes to injuries covered by the admiralty jurisdiction. Later, in Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, , 40 S.Ct. 438, 441, 64 L.Ed. 834 (1920), we held that not even Congress itself could permit such application and thereby sanction destruction of the constitutionally prescribed uniformity. We have also relied on the uniformity principle to hold that a State may not require that a maritime contract be in writing where admiralty law regards oral contracts as valid, Kossick v. United Fruit Co., 365 U.S. 731, 81 S.Ct. 886, 6 L.Ed.2d 56 (1961). discernible in our admiralty jurisprudence, or indeed is even entirely consistent within our admiralty jurisprudence. Compare Kossick, supra (state law cannot require provision of maritime contract to be in writing), with Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U.S. 310, 75 S.Ct. 368, 99 L.Ed. 337 (1955) (state law can determine effect of breach of warranty in marine insurance policy). Happily, it is unnecessary to wrestle with that difficulty today. Wherever the boundaries of permissible state regulation may lie, they do not invalidate state rejection of forum non conveniens, which is in two respects quite dissimilar from any other matter that our opinions have held to be governed by federal admiralty law: it is procedural rather than substantive, and it is most unlikely to produce uniform results. * * * The judgment of the Supreme Court of Louisiana is Affirmed. The requirement of uniformity is not, however, absolute. As Jensen itself recognized: "[I]t would be difficult, if not impossible, to define with exactness just how far the general maritime law may be changed, modified, or affected by state legislation. That this may be done to some extent cannot be denied." 244 U.S., at 216, 37 S.Ct., at 529. A later case describes to what breadth this "some extent" extends: "It is true that state law must yield to the needs of a uniform federal maritime law when this Court finds inroads on a harmonious system [,] [b]ut this limitation still leaves the States a wide scope. State-created liens are enforced in admiralty. State remedies for wrongful death and state statutes providing for the survival of actions... have been upheld when applied to maritime causes of action... State rules for the partition and sale of ships, state laws governing the specific performance of arbitration agreements, state laws regulating the effect of a breach of warranty under contracts of maritime insurance--all these laws and others have been accepted as rules of decision in admiralty cases, even, at times, when they conflicted with a rule of maritime law which did not require uniformity." Romero v. International Terminal Operating Co., 358 U.S. 354, , 79 S.Ct. 468, , 3 L.Ed.2d 368 (1959) (footnotes omitted). It would be idle to pretend that the line separating permissible from impermissible state regulation is readily -5-

16 3. Maritime Tort Jurisdiction 46 App. U.S.C.A Extension of admiralty and maritime jurisdiction; libel in rem or in personam; exclusive remedy; waiting period The admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land. In any such case suit may be brought in rem or in personam according to the principles of law and the rules of practice obtaining in cases where the injury or damage has been done and consummated on navigable water: Provided, That as to any suit against the United States for damage or injury done or consummated on land by a vessel on navigable waters, the Public Vessels Act or Suits in Admiralty Act, as appropriate, shall constitute the exclusive remedy for all causes of action arising after June 19, 1948, and for all causes of action where suit has not been hitherto filed under the Federal Tort Claims Act: Provided further, That no suit shall be filed against the United States until there shall have expired a period of six months after the claim has been presented in writing to the Federal agency owning or operating the vessel causing the injury or damage. 115 S.Ct JEROME B. GRUBART, INC. v. GREAT LAKES DREDGE & DOCK COMPANY CITY OF CHICAGO v. GREAT LAKES DREDGE & DOCK COMPANY Nos , Argued Oct. 12, Decided Feb. 22, SOUTER, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and O'CONNOR, KENNEDY, and GINSBURG, JJ., joined. O'CONNOR, J., filed a concurring opinion, post, p THOMAS, J., filed an opinion concurring in the judgment, in which SCALIA, J., joined, post, p STEVENS and BREYER, JJ., took no part in the decision of the cases. On April 13, 1992, water from the Chicago River poured into a freight tunnel running under the river and thence into the basements of buildings in the downtown Chicago Loop. Allegedly, the flooding resulted from events several months earlier, when respondent Great Lakes Dredge and Dock Company had used a crane, sitting on a barge in the river next to a bridge, to drive piles into the riverbed above the tunnel. The issue before us is whether a court of the United States has admiralty jurisdiction to determine and limit the extent of Great Lakes's tort liability. We hold this suit to be within federal admiralty jurisdiction. I. The complaint, together with affidavits subject to no objection, alleges the following facts. In 1990, Great Lakes bid on a contract with petitioner city of Chicago to replace wooden pilings clustered around the piers of several bridges spanning the Chicago River, a navigable waterway within the meaning of The Daniel Ball, 10 Wall. 557, 563, 19 L.Ed. 999 (1871). See Escanaba Co. v. Chicago, 107 U.S. 678, 683, 2 S.Ct. 185, , 27 L.Ed. 442 (1883). The pilings (called dolphins) keep ships from bumping into the piers and so protect both. After winning the contract, Great Lakes carried out the work with two barges towed by a tug. One barge carried pilings; the other carried a crane that pulled out old pilings and helped drive in new ones. In August and September 1991, Great Lakes replaced the pilings around the piers projecting into the river and supporting the Kinzie Street Bridge. After towing the crane-carrying barge into position near one of the piers, Great Lakes's employees secured the barge to the riverbed with spuds, or long metal legs that project down from the barge and anchor it. The workers then used the crane on the barge to pull up old pilings, stow them on the other barge, and drive new pilings into the riverbed around the piers. About seven months later, an eddy formed in the river near the bridge as the collapsing walls or ceiling of a freight tunnel running under the river opened the tunnel to river water, which flowed through to flood buildings in the Loop. After the flood, many of the victims brought actions in state court against Great Lakes and the city of Chicago, claiming that in the course of replacing the pilings Great Lakes had negligently weakened the tunnel structure, which Chicago -6-

17 (its owner) had not properly maintained. Great Lakes then brought this lawsuit in the United States District Court, invoking federal admiralty jurisdiction. Count I of the complaint seeks the protection of the Limitation of Vessel Owner's Liability Act (Limitation Act), 46 U.S.C.App. 181 et seq., a statute that would, in effect, permit the admiralty court to decide whether Great Lakes committed a tort and, if so, to limit Great Lakes's liability to the value of the vessels (the tug and two barges) involved if the tort was committed "without the privity or knowledge" of the vessels' owner, 46 U.S.C.App. 183(a). Counts II and III of Great Lakes's complaint ask for indemnity and contribution from the city for any resulting loss to Great Lakes. The city, joined by petitioner Jerome B. Grubart, Inc., one of the state-court plaintiffs, filed a motion to dismiss this suit for lack of admiralty jurisdiction. Fed.Rule Civ.Proc. 12(b)(1). The District Court granted the motion, the Seventh Circuit reversed, Great Lakes Dredge & Dock Co. v. Chicago, 3 F.3d 225 (1993), and we granted certiorari, 510 U.S. 1108, 114 S.Ct. 1047, 127 L.Ed.2d 370 (1994). We now affirm. II. The parties do not dispute the Seventh Circuit's conclusion that jurisdiction as to Counts II and III (indemnity and contribution) hinges on jurisdiction over the Count I claim. See 3 F.3d, at 231, n. 9; see also 28 U.S.C (1988 ed., Supp. V) (supplemental jurisdiction); Fed.Rules Civ.Proc. 14(a) and (c) (impleader of third parties). Thus, the issue is simply whether or not a federal admiralty court has jurisdiction over claims that Great Lakes's faulty replacement work caused the flood damage. A. A federal court's authority to hear cases in admiralty flows initially from the Constitution, which "extend[s]" federal judicial power "to all Cases of admiralty and maritime Jurisdiction." U.S. Const., Art. III, 2. Congress has embodied that power in a statute giving federal district courts "original jurisdiction... of... [a]ny civil case of admiralty or maritime jurisdiction..." 28 U.S.C. 1333(1). The traditional test for admiralty tort jurisdiction asked only whether the tort occurred on navigable waters. If it did, admiralty jurisdiction followed; if it did not, admiralty jurisdiction did not exist. See, e.g., Thomas v. Lane, 23 F.Cas. 957, 960 (No ) (CC Me. 1813) (Story, J., on Circuit). This ostensibly simple locality test was complicated by the rule that the injury had to be "wholly" sustained on navigable waters for the tort to be within admiralty. The Plymouth, 3 Wall. 20, 34, 18 L.Ed. 125 (1866) (no jurisdiction over tort action brought by the owner of warehouse destroyed in a fire that started on board a ship docked nearby). Thus, admiralty courts lacked jurisdiction over, say, a claim following a ship's collision with a pier insofar as it injured the pier, for admiralty law treated the pier as an extension of the land. Martin v. West, 222 U.S. 191, 197, 32 S.Ct. 42, 43, 56 L.Ed. 159 (1911); Cleveland Terminal & Valley R. Co. v. Cleveland S.S. Co., 208 U.S. 316, 319, 28 S.Ct. 414, 415, 52 L.Ed. 508 (1908). This latter rule was changed in 1948, however, when Congress enacted the Extension of Admiralty Jurisdiction Act, 62 Stat The Act provided that "[t]he admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land." 46 U.S.C.App The purpose of the Act was to end concern over the sometimes confusing line between land and water, by investing admiralty with jurisdiction over "all cases" where the injury was caused by a ship or other vessel on navigable water, even if such injury occurred on land. See, e.g., Gutierrez v. Waterman S.S. Corp., 373 U.S. 206, , 83 S.Ct. 1185, , 10 L.Ed.2d 297 (1963); Executive Jet Aviation, Inc. v. Cleveland, 409 U.S. 249, 260, 93 S.Ct. 493, , 34 L.Ed.2d 454 (1972). After this congressional modification to gather the odd case into admiralty, the jurisdictional rule was qualified again in three decisions of this Court aimed at keeping a different class of odd cases out. In the first case, Executive Jet, supra, tort claims arose out of the wreck of an airplane that collided with a flock of birds just after takeoff on a domestic flight and fell into the navigable waters of Lake Erie. We held that admiralty lacked jurisdiction to consider the claims. We wrote that "a purely mechanical application of the locality test" was not always "sensible" or "consonant with the purposes of maritime law," id., at 261, 93 S.Ct., at 501, as when (for example) the literal and universal application of the locality rule would require admiralty courts to adjudicate tort disputes between colliding swimmers, id., at 255, 93 S.Ct., at 498. We held that "claims arising from airplane accidents are not cognizable in admiralty" despite the location of the harm, unless "the wrong bear[s] a significant relationship to traditional maritime activity." Id., at 268, 93 S.Ct., at 504. The second decision, Foremost Ins. Co. v. Richardson, 457 U.S. 668, 102 S.Ct. 2654, 73 L.Ed.2d 300 (1982), dealt with tort claims arising out of the collision of two pleasure boats in a navigable river estuary. We held that admiralty courts had jurisdiction, id., at 677, 102 S.Ct., at 2659, even though jurisdiction existed only if "the wrong" had "a significant connection with traditional maritime activity," id., at 674, 102 S.Ct., at We conceded that pleasure boats themselves had little to do with the maritime commerce -7-

18 lying at the heart of the admiralty court's basic work, id., at , 102 S.Ct., at , but we nonetheless found the necessary relationship in "[t]he potential disruptive impact [upon maritime commerce] of a collision between boats on navigable waters, when coupled with the traditional concern that admiralty law holds for navigation...," id., at 675, 102 S.Ct., at In the most recent of the trilogy, Sisson v. Ruby, 497 U.S. 358, 110 S.Ct. 2892, 111 L.Ed.2d 292 (1990), we held that a federal admiralty court had jurisdiction over tort claims arising when a fire, caused by a defective washer/dryer aboard a pleasure boat docked at a marina, burned the boat, other boats docked nearby, and the marina itself. Id., at 367, 110 S.Ct., at We elaborated on the enquiry exemplified in Executive Jet and Foremost by focusing on two points to determine the relationship of a claim to the objectives of admiralty jurisdiction. We noted, first, that the incident causing the harm, the burning of docked boats at a marina on navigable waters, was of a sort "likely to disrupt [maritime] commercial activity." 497 U.S., at 363, 110 S.Ct., at Second, we found a "substantial relationship" with "traditional maritime activity" in the kind of activity from which the incident arose, "the storage and maintenance of a vessel... on navigable waters." Id., at , 110 S.Ct., at After Sisson, then, a party seeking to invoke federal admiralty jurisdiction pursuant to 28 U.S.C. 1333(1) over a tort claim must satisfy conditions both of location and of connection with maritime activity. A court applying the location test must determine whether the tort occurred on navigable water or whether injury suffered on land was caused by a vessel on navigable water. 46 U.S.C.App The connection test raises two issues. A court, first, must "assess the general features of the type of incident involved," 497 U.S., at 363, 110 S.Ct., at 2896, to determine whether the incident has "a potentially disruptive impact on maritime commerce," id., at 364, n. 2, 110 S.Ct., at 2896, n. 2. Second, a court must determine whether "the general character" of the "activity giving rise to the incident" shows a "substantial relationship to traditional maritime activity." Id., at 365, 364, and n. 2, 110 S.Ct., at 2897, 2896, and n. 2. We now apply the tests to the facts of this suit. B. The location test is, of course, readily satisfied. If Great Lakes caused the flood, it must have done so by weakening the structure of the tunnel while it drove in new pilings or removed old ones around the bridge piers. The weakening presumably took place as Great Lakes's workers lifted and replaced the pilings with a crane that sat on a barge stationed in the Chicago River. The place in the river where the barge sat, and from which workers directed the crane, is in the "navigable waters of the United States." Escanaba Co., 107 U.S., at 683, 2 S.Ct., at Thus, if Great Lakes committed a tort, it must have done it while on navigable waters. It must also have done it "by a vessel." Even though the barge was fastened to the river bottom and was in use as a work platform at the times in question, at other times it was used for transportation. See 3 F.3d, at 229. Petitioners do not here seriously dispute the conclusion of each court below that the Great Lakes barge is, for admiralty tort purposes, a "vessel." The fact that the pile driving was done with a crane makes no difference under the location test, given the maritime law that ordinarily treats an "appurtenance" attached to a vessel in navigable waters as part of the vessel itself. See, e.g., Victory Carriers, Inc. v. Law, 404 U.S. 202, , 92 S.Ct. 418, , 30 L.Ed.2d 383 (1971); Gutierrez, 373 U.S., at , 83 S.Ct., at Because the injuries suffered by Grubart and the other flood victims were caused by a vessel on navigable water, the location enquiry would seem to be at an end, "notwithstanding that such damage or injury [was] done or consummated on land." 46 U.S.C.App Both Grubart and Chicago nonetheless ask us to subject the Extension Act to limitations not apparent from its text. While they concede that the Act refers to "all cases of damage or injury," they argue that "all" must not mean literally every such case, no matter how great the distance between the vessel's tortious activity and the resulting harm. They contend that, to be within the Act, the damage must be close in time and space to the activity that caused it: that it must occur "reasonably contemporaneously" with the negligent conduct and no "farther from navigable waters than the reach of the vessel, its appurtenances and cargo." Brief for Petitioner in No , p. 45 (City Brief). For authority, they point to this Court's statement in Gutierrez, supra, that jurisdiction is present when the "impact" of the tortious activity "is felt ashore at a time and place not remote from the wrongful act." Id., at 210, 83 S.Ct., at The demerits of this argument lie not only in its want of textual support for its nonremoteness rule, but in its disregard of a less stringent but familiar proximity condition tied to the language of the statute. The Act uses the phrase "caused by," which more than one Court of Appeals has read as requiring what tort law has traditionally called "proximate causation." See, e.g., Pryor v. American President Lines, 520 F.2d 974, 979 (CA4 1975), cert. denied, 423 U.S. 1055, 96 S.Ct. 787, 46 L.Ed.2d 644 (1976); Adams v. Harris County, 452 F.2d 994, (CA5 1971), cert. denied, 406 U.S. 968, 92 S.Ct. 2414, 32 L.Ed.2d 667 (1972). This classic tort notion normally eliminates the bizarre, cf. Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99 (1928), and its use should obviate not only the -8-

19 complication but even the need for further temporal or spatial limitations. Nor is reliance on familiar proximate causation inconsistent with Gutierrez, which used its nonremote language, not to announce a special test, but simply to distinguish its own facts (the victim having slipped on beans spilling from cargo containers being unloaded from a ship) from what the Court called "[v]arious far-fetched hypotheticals," such as injury to someone slipping on beans that continue to leak from the containers after they had been shipped from Puerto Rico to a warehouse in Denver. 373 U.S., at 210, 83 S.Ct., at See also Victory Carriers, supra, 404 U.S., at , 92 S.Ct., at The city responds by saying that, as a practical matter, the use of proximate cause as a limiting jurisdictional principle would undesirably force an admiralty court to investigate the merits of the dispute at the outset of a case when it determined jurisdiction. The argument, of course, assumes that the truth of jurisdictional allegations must always be determined with finality at the threshold of litigation, but that assumption is erroneous. Normal practice permits a party to establish jurisdiction at the outset of a case by means of a nonfrivolous assertion of jurisdictional elements, see, e.g., Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 285, 113 S.Ct. 753, 768, 122 L.Ed.2d 34 (1993); Bell v. Hood, 327 U.S. 678, , 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946), and any litigation of a contested subject-matter jurisdictional fact issue occurs in comparatively summary procedure before a judge alone (as distinct from litigation of the same fact issue as an element of the cause of action, if the claim survives the jurisdictional objection). See 2A J. Moore & J. Lucas, Moore's Federal Practice 12.07[2.--1] (2d ed. 1994); 5A C. Wright & A. Miller, Federal Practice and Procedure 1350 (2d ed. 1990). There is no reason why this should not be just as true for proximate causation as it is for the maritime nature of the tortfeasor's activity giving rise to the incident. See Sisson, 497 U.S., at 365, 110 S.Ct., at There is no need or justification, then, for imposing an additional nonremoteness hurdle in the name of jurisdiction. C. We now turn to the maritime connection enquiries, the first being whether the incident involved was of a sort with the potential to disrupt maritime commerce. In Sisson, we described the features of the incident in general terms as "a fire on a vessel docked at a marina on navigable waters," id., at 363, 110 S.Ct., at 2896, and determined that such an incident "plainly satisf[ied]" the first maritime connection requirement, ibid., because the fire could have "spread to nearby commercial vessels or ma[d]e the marina inaccessible to such vessels" and therefore "[c]ertainly" had a "potentially disruptive impact on maritime commerce," id., at 362, 110 S.Ct., at We noted that this first prong went to potential effects, not to the "particular facts of the incident," noting that in both Executive Jet and Foremost we had focused not on the specific facts at hand but on whether the "general features" of the incident were "likely to disrupt commercial activity." 497 U.S., at 363, 110 S.Ct., at The first Sisson test turns, then, on a description of the incident at an intermediate level of possible generality. To speak of the incident as "fire" would have been too general to differentiate cases; at the other extreme, to have described the fire as damaging nothing but pleasure boats and their tie-up facilities would have ignored, among other things, the capacity of pleasure boats to endanger commercial shipping that happened to be nearby. We rejected both extremes and instead asked whether the incident could be seen within a class of incidents that posed more than a fanciful risk to commercial shipping. Following Sisson, the "general features" of the incident at issue here may be described as damage by a vessel in navigable water to an underwater structure. So characterized, there is little question that this is the kind of incident that has a "potentially disruptive impact on maritime commerce." As it actually turned out in this suit, damaging a structure beneath the riverbed could lead to a disruption in the water course itself, App. 33 (eddy formed above the leak); and, again as it actually happened, damaging a structure so situated could lead to restrictions on the navigational use of the waterway during required repairs. See Pet. for Cert. in No , p. 22a (District Court found that after the flood "[t]he river remained closed for over a month," "[r]iver traffic ceased, several commuter ferries were stranded, and many barges could not enter the river system... because the river level was lowered to aid repair efforts"). Cf. Pennzoil Producing Co. v. Offshore Express, Inc., 943 F.2d 1465 (CA5 1991) (admiralty suit when vessel struck and ruptured gas pipeline and gas exploded); Marathon Pipe Line Co. v. Drilling Rig Rowan/Odessa, 761 F.2d 229, 233 (CA5 1985) (admiralty jurisdiction when vessel struck pipeline, "a fixed structure on the seabed"); Orange Beach Water, Sewer, and Fire Protection Authority v. M/V Alva, 680 F.2d 1374 (CA ) (admiralty suit when vessel struck underwater pipeline). In the second Sisson enquiry, we look to whether the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity. We ask whether a tortfeasor's activity, commercial or noncommercial, on navigable waters is so closely related to activity traditionally subject to admiralty law that the reasons for applying special admiralty rules would apply in the suit at hand. Navigation of boats in navigable waters clearly falls within the substantial relationship, Foremost, 457 U.S., at 675, 102 S.Ct., at ; storing them at a marina on navigable waters is close enough, Sisson, supra, 497 U.S., at 367, 110 S.Ct., at 2898; whereas in flying an airplane over the water, Executive Jet, 409 U.S., at , -9-

20 93 S.Ct., at , as in swimming, id., at , 93 S.Ct., at , the relationship is too attenuated. On like reasoning, the "activity giving rise to the incident" in this suit, Sisson, supra, 497 U.S., at 364, 110 S.Ct., at 2897, should be characterized as repair or maintenance work on a navigable waterway performed from a vessel. Described in this way, there is no question that the activity is substantially related to traditional maritime activity, for barges and similar vessels have traditionally been engaged in repair work similar to what Great Lakes contracted to perform here. See, e.g., Shea v. Rev-Lyn Contracting Co., 868 F.2d 515, 518 (CA1 1989) (bridge repair by crane-carrying barge); Nelson v. United States, 639 F.2d 469, 472 (CA9 1980) (Kennedy, J.) (repair of wave suppressor from a barge); In re New York Dock Co., 61 F.2d 777 (CA2 1932) (pile driving from crane-carrying barge in connection with the building of a dock); In re P. Sanford Ross, Inc., 196 F. 921, (EDNY 1912) (pile driving from crane-carrying barge close to water's edge), rev'd on other grounds, 204 F. 248 (CA2 1913); cf. In re The V-14813, 65 F.2d 789, 790 (CA5 1933) ("There are many cases holding that a dredge, or a barge with a pile driver, employed on navigable waters, is subject to maritime jurisdiction "); Lawrence v. Flatboat, 84 F. 200 (SD Ala.1897) (pile driving from crane-carrying barge in connection with the erection of bulkheads), aff'd sub nom. Southern Log Cart & Supply Co. v. Lawrence, 86 F. 907 (CA5 1898). The city argues, to the contrary, that a proper application of the activity prong of Sisson would consider the city's own alleged failure at properly maintaining and operating the tunnel system that runs under the river. City Brief If this asserted proximate cause of the flood victims' injuries were considered, the city submits, its failure to resemble any traditional maritime activity would take this suit out of admiralty. The city misreads Sisson, however, which did not consider the activities of the washer/dryer manufacturer, who was possibly an additional tortfeasor, and whose activities were hardly maritime; the activities of Sisson, the boat owner, supplied the necessary substantial relationship to traditional maritime activity. Likewise, in Foremost, we said that "[b]ecause 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..." 457 U.S., at 674, 102 S.Ct. at By using the word "involves," we made it clear that we need to look only to whether one of the arguably proximate causes of the incident originated in the maritime activity of a tortfeasor: as long as one of the putative tortfeasors was engaged in traditional maritime activity the allegedly wrongful activity will "involve" such traditional maritime activity and will meet the second nexus prong. Thus, even if we were to identify the "activity giving rise to the incident" as including the acts of the city as well as Great Lakes, admiralty jurisdiction would nevertheless attach. That result would be true to Sisson 's requirement of a "substantial relationship" between the "activity giving rise to the incident" and traditional maritime activity. Sisson did not require, as the city in effect asserts, that there be a complete identity between the two. The substantial relationship test is satisfied when at least one alleged tortfeasor was engaging in activity substantially related to traditional maritime activity and such activity is claimed to have been a proximate cause of the incident. Petitioners also argue that we might get a different result simply by characterizing the "activity" in question at a different level of generality, perhaps as "repair and maintenance," or as "pile driving near a bridge." The city is, of course, correct that a tortfeasor's activity can be described at a sufficiently high level of generality to eliminate any hint of maritime connection, and if that were properly done Sisson would bar assertion of admiralty jurisdiction. But to suggest that such hypergeneralization ought to be the rule would convert Sisson into a vehicle for eliminating admiralty jurisdiction. Although there is inevitably some play in the joints in selecting the right level of generality when applying the Sisson test, the inevitable imprecision is not an excuse for whimsy. The test turns on the comparison of traditional maritime activity to the arguably maritime character of the tortfeasor's activity in a given case; the comparison would merely be frustrated by eliminating the maritime aspect of the tortfeasor's activity from consideration. Grubart makes an additional claim that Sisson is being given too expansive a reading. If the activity at issue here is considered maritime related, it argues, then virtually "every activity involving a vessel on navigable waters" would be "a traditional maritime activity sufficient to invoke maritime jurisdiction." Grubart Brief 6. But this is not fatal criticism. This Court has not proposed any radical alteration of the traditional criteria for invoking admiralty jurisdiction in tort cases, but has simply followed the lead of the lower federal courts in rejecting a location rule so rigid as to extend admiralty to a case involving an airplane, not a vessel, engaged in an activity far removed from anything traditionally maritime. See Executive Jet, 409 U.S., at , 93 S.Ct., at ; see also Peytavin v. Government Employees Ins. Co., 453 F.2d 1121, 1127 (CA5 1972) (no jurisdiction over claim for personal injury by motorist who was rear-ended while waiting for a ferry on a floating pontoon serving as the ferry's landing); Chapman v. Grosse Pointe Farms, 385 F.2d 962 (CA6 1967) (no admiralty jurisdiction over claim of swimmer who injured himself when diving off pier into shallow but navigable water). In the cases after Executive Jet, the Court stressed the need for a maritime connection, but found one in the navigation or berthing of pleasure boats, despite the facts that the pleasure boat activity took place near shore, where -10-

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