Alderman v. Pacific Northern Victor, Inc. ( 1996 )

United States Court of Appeals,
Eleventh Circuit.
Nos. 94-3370, 95-2108.
James F. ALDERMAN, Plaintiff-Appellant,
v.
PACIFIC NORTHERN VICTOR, INC., Marco Alaska Northern Victor,
Inc., John Johannassen Victor, Inc., Lloyd Johannassen Victor,
Inc., d/b/a Northern Victor Partnership, Defendants-Appellees,
Southern Tuna Corporation, a Washington Corporation, Defendant.
James F. ALDERMAN, Plaintiff-Appellant,
v.
PACIFIC NORTHERN VICTOR, INC., Marco Alaska Northern Victor,
Inc., John Johannassen Victor, Inc., Lloyd Johannassen Victor,
Inc., d/b/a Northern Victor Partnership, Southern Tuna Corporation,
a Washington Corporation, Defendants-Appellees.
Sept. 23, 1996.
Appeals from the United States District Court for the Northern
District of Florida. (No. 93-50149 RV), Roger Vinson, Judge.
Before TJOFLAT, Chief Judge, BLACK, Circuit Judge, and REAVLEY*,
Senior Circuit Judge.
REAVLEY, Senior Circuit Judge:
In February of 1990 the M/V Northern Victor, owned by the
Northern Victor Partnership, was docked in navigable waters in
southern Florida where it was undergoing a conversion from an oil
drilling vessel to a fish processing vessel. Alderman, a
carpenter, was assisting in the installation of an elevator aboard
the Northern Victor. On the 5th of February, Alderman fell when he
slipped in oil which had leaked from a codfish heading machine.
Years later, Alderman filed the instant suit in state court. The
*
Honorable Thomas M. Reavley, Senior U.S. Circuit Judge for
the Fifth Circuit, sitting by designation.
cause was removed to federal court based upon the diversity of the
parties and upon admiralty jurisdiction. The district court
granted summary judgment in favor of the defendants, and Alderman
appeals.
Relying upon Sisson v. Ruby, 497 U.S. 358, 110 S.Ct. 2892, 111
L.Ed.2d 292 (1990), and our former circuit's opinion in Kelly v.
Smith, 485 F.2d 520, 525 (5th Cir.1973), the district court
1
determined that this was a maritime tort. The district court
granted summary judgment for Northern Victor, holding that the suit
was time barred because it had not been filed within the applicable
three-year statute of limitations.2 Subsequent to that decision,
the Supreme Court handed down its opinion in Grubart v. Great Lakes
Dredge & Dock Co., --- U.S. ----, ----, 115 S.Ct. 1043, 1047, 130
L.Ed.2d 1024 (1995), which specifically rejected the four-factor
test in Kelly, 485 F.2d at 525.
The issue before us is a simple one. If the tort is governed
by maritime law, the parties agree that the statute of limitations
has run. If, however, it is governed by Florida law, the suit
continues. Finding this to be a maritime tort, we affirm.
Discussion
Whether substantive admiralty law applies is a question of
law that we review de novo.3 To determine whether substantive
admiralty law applies, we decide whether this suit comes within the
1
See Sea Vessel, Inc. v. Reyes, 23 F.3d 345, 350 n. 9 (11th
Cir.1994) ("We continue to recognize the Kelly test as a
permissive, as opposed to mandatory, tool.")
2
46 U.S.C.App. § 763a.
3
Sea Vessel, 23 F.3d at 347.
admiralty jurisdiction of the district court.4
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."5
Traditionally, the test for admiralty tort jurisdiction was simple;
jurisdiction existed if the tort occurred on navigable waters.6 As
technology advanced, it became apparent that this test was no
longer sufficient. In a trilogy of cases between 1972 and 1990,
the Supreme Court redefined the test for admiralty cases.7
Today, for a tort claim to be cognizable under admiralty
jurisdiction, the activity from which the claim arises must satisfy
a location test and it must have sufficient connection with
maritime activity.8 "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."9 In this case both parties readily agree that this tort
4
See East River Steamship Corp. v. Transamerica Delaval,
Inc., 476 U.S. 858, 862-66, 106 S.Ct. 2295, 2298-99, 90 L.Ed.2d
865 (1986); Mink v. Genmar Industries, Inc., 29 F.3d 1543, 1547
(11th Cir.1994).
5
U.S. Const., Art. III, § 2; Grubart v. Great Lakes Dredge
& Dock Co., --- U.S. ----, ----, 115 S.Ct. 1043, 1047, 130
L.Ed.2d 1024 (1995).
6
Id., at ----, 115 S.Ct. at 1047; The Plymouth, 3 Wall 20,
34, 18 L.Ed. 125 (1865).
7
Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S.
249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972); Foremost Ins. Co. v.
Richardson, 457 U.S. 668, 102 S.Ct. 2654, 73 L.Ed.2d 300 (1982);
Sisson v. Ruby, 497 U.S. 358, 110 S.Ct. 2892, 111 L.Ed.2d 292(1990).
8
Grubart, --- U.S. at ----, 115 S.Ct. at 1048.
9
Id.occurred on navigable waters.
The connection test raises two issues. First, we are
required to " "assess the general features of the type of accident
involved,' to determine whether the incident has "a potentially
10
disruptive impact on maritime commerce.' " Second, we "must
determine whether "the general character' of the "activity giving
rise to the incident' shows a "substantial relationship to
traditional maritime activity.' "11 Alderman argues that the
connection test is not met.
A.
The first issue we confront is the potentially disruptive
impact upon maritime commerce. Alderman asserts that, as a matter
of fact, there was no disruptive impact on maritime commerce as a
result of his injury. He argues that the defendants "have not
demonstrated any disruption, other than the unsupported
representation that "the overall aspect of the venture, including
the Plaintiffs, shipyards, and vessel owners commercial interests,
have been affected by the incident.' "
Alderman's reliance on the actual impact of the incident upon
maritime commerce is misplaced. "The first Sisson test turns,
then, on a description of the incident at an intermediate level of
possible generality."12 We must look to "whether the incident could
10
Id. (quoting Sisson, 497 U.S. at 362-64 & n. 2, 110 S.Ct.
at 2896 & n. 2).
11
Grubart, --- U.S. at ----, 115 S.Ct. at 1048 (quoting
Sisson, 497 U.S. at 362-64 & n. 2, 110 S.Ct. at 2897, 2896 & n.
2).
12
Grubart, --- U.S. at ----, 115 S.Ct. at 1051.
be seen within a class of incidents that posed more than a fanciful
risk to commercial shipping."13 The correct inquiry is not whether
there was an effect on maritime activity, but rather whether there
"potentially" could have been.14 This distinction is crucial. When
examining the disruptive impact on maritime activity for purposes
of determining jurisdiction, our focus is not on what actually
happened, but upon the potential effects of what could happen.
In this case, we examine the nature of injuries that resulted
during the conversion of an oil drilling vessel to a fish
processing vessel. The general features of this accident may be
described as an onboard injury which occurred during the repair,
maintenance or conversion of a vessel. Any accident occurring in
this manner could have the potential to disrupt further repairs of
that vessel, vessels being worked on at the same dock, or vessels
waiting to be worked upon. Not only could it inhibit the maritime
commerce of the vessel under repair, but it could easily disrupt
other vessels. Unsafe working conditions aboard a vessel under
repairs, maintenance, or conversion, therefore, pose a potentially
disruptive impact upon maritime commerce.15 Whether or not
13
Id.14
Grubart, --- U.S. at ----, 115 S.Ct. at 1051; Sisson, 497
U.S. at 362-64, 110 S.Ct. at 2896 ("The jurisdictional inquiry
does not turn on the actual effects on maritime commerce of the
fire on Sisson's vessel; nor does it turn on the particular
facts of the incident in this case....").
15
See Coats v. Penrod Drilling Corp., 61 F.3d 1113, 1119
(5th Cir.1995) (en banc) ("Without a doubt, worker injuries,
particularly to those involved in repair and maintenance, can
have a disruptive impact on maritime commerce by stalling or
delaying the primary activity of the vessel."); White v. United
States, 53 F.3d 43, 47 (4th Cir.1995) (Person injured while
disembarking a ship docked during repairs "poses a more than
disruption resulted here is of no moment.
B.
Next, Alderman asserts that the activity underlying this suit
does not have a substantial relationship to maritime activity. In
support of his proposition, Alderman relies heavily upon our
opinion in Penton v. Pompano Const. Co., Inc., 976 F.2d 636 (11th
Cir.1992). In Penton we were also examining whether a plaintiff's
negligence claim constituted a maritime tort. Penton operated a
construction crane mounted on a barge. The crane off loaded rocks
from other supply barges and placed the rocks to create a 150-foot-
long jetty. Upon completion of the jetty, Penton was responsible
for the removal of the crane onto land. During this disassembly,
Penton was injured.
The court in Penton characterized the activity causing
Penton's injury as a "typical construction site accident." 16 The
court determined that the unloading of the crane onto land could
not be compared to the unloading of cargo from a vessel. The crane
was not "cargo" in any sense of the word. Additionally, the court
found it important that the crane was being used in the
construction of the 150-foot-long jetty. Essentially, the barge
was being used as a platform for the crane to perform "water-side
construction" of the jetty. The court also found it important that
Penton was a "construction worker by training and experience."17
fanciful risk to a variety of activities essential to maritime
commerce.")
16
976 F.2d at 641.
17
Id.We believe Penton is not controlling. Alderman asserts that
he too was merely a "construction worker" and that the accident
suffered aboard the ship was no different than any other "typical
construction site accident" that could occur on land. The work of
the injured plaintiff does not determine whether there is a
substantial relationship to maritime activity. The important
question is "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 case at
hand."18 Therefore, we are to look not at Alderman's activities,
but instead, the activities of the tortfeasor. This was further
emphasized in Grubart when the Court noted that where there are
multiple tortfeasors "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."19 To the extent that the opinion in
Penton relied upon the plaintiff's activities, that case has been
overruled by Grubart.
Our examination of the actions of the tortfeasor should be
given a "broad perspective."20 The "cases have made clear that the
relevant "activity' is defined not by the particular circumstances
of the incident, but by the general conduct from which the incident
18
Grubart, --- U.S. at ----, 115 S.Ct. at 1051 (emphasis
added).
19
Id. at ----, 115 S.Ct. at 1052.
20
Sisson, 497 U.S. at 366-67, 110 S.Ct. at 2898.
arose."21 The Northern Victor's activity was substantially related
to traditional maritime activity. The vessel was undergoing a
conversion from an oil drilling vessel to a fish processing vessel.
Under the broad perspective given the second test, we believe that
conversions, repairs, or maintenance aboard a vessel in navigable
water are substantially related to traditional maritime activity.22
Work upon ships at sea or docked in navigable waterways is an
indispensable maritime activity. It is essential to the continued
productive use of those vessels.
Conclusion
Having determined that both tests are met, this case came
within the admiralty jurisdiction of the district court. "With
admiralty jurisdiction comes the application of substantive
admiralty law."23 Therefore, this is a maritime tort, and the cause
of action is time barred under the applicable three year statute of
limitations.24
AFFIRMED.
21
Sisson, 497 U.S. at 364-66, 110 S.Ct. at 2897.
22
Coats, 61 F.3d at 1119 ("the repair and maintenance of a
jack-up drilling rig on navigable waters is certainly a
traditional maritime activity."); see Grubart, --- U.S. at ----,
115 S.Ct. at 1051 ("On like reasoning, the "activity giving rise
to the incident" in this case, should be characterized as repair
or maintenance work on a navigable waterway performed from a
vessel. Described this way, there is no question that the
activity is substantially related to traditional maritime
activity...." (citation omitted)).
23
East River Steamship, 476 U.S. at 862-66, 106 S.Ct. at
2298-99; Mink, 29 F.3d at 1547.
24
46 U.S.C.App. § 763a.