Mission Bay Jet Sports, LLC v. Haley Colombo ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: THE MATTER OF THE 
COMPLAINT OF MISSION BAY JET
SPORTS, LLC; AND ROBERT
ADAMSON, INDIVIDUALLY AND D/B/A
MISSION BAY JET SPORTS FOR
EXONERATION FROM OR LIMITATION
OF LIABILITY,
No. 08-56142
D.C. No.
MISSION BAY JET SPORTS, LLC, a  CV-08-00146-JM-
California Limited Liability CAB
Corporation; ROBERT ADAMSON, OPINION
individually and d/b/a MISSION
BAY JET SPORTS, LLC,
Plaintiffs-Appellants,
v.
HALEY COLOMBO; JESSICA SLAGEL,
Defendants-Appellees.

Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, District Judge, Presiding
Argued and Submitted
June 3, 2009—Pasadena, California
Filed June 24, 2009
Before: Pamela Ann Rymer and Susan P. Graber,
Circuit Judges, and Ann Aldrich,* District Judge.
*The Honorable Ann Aldrich, Senior United States District Judge for
the Northern District of Ohio, sitting by designation.
7853
7854 MISSION BAY JET SPORTS v. COLOMBO
Opinion by Judge Rymer
7856 MISSION BAY JET SPORTS v. COLOMBO
COUNSEL
Sterling J. Stires, Law Offices of Charles S. LiMandri, Ran-
cho Santa Fe, California, for the plaintiffs-appellants.
Thomas L. Tosdal (argued) and Ann M. Smith, Tosdal, Smith,
Steiner & Wax, San Diego, California, for the real parties in
interest, defendants-appellees.
OPINION
RYMER, Circuit Judge:
We must decide whether admiralty jurisdiction exists over
tort claims by two women who were seriously injured when
thrown off a jet-propelled Sea-Doo personal watercraft, alleg-
edly operated negligently, on navigable waters in an area of
San Diego’s Mission Bay that is reserved for the use of such
vessels. The district court thought not, but we believe both the
location of the accident and its connection to traditional mari-
time activity sustain admiralty jurisdiction. Accordingly, we
reverse and remand.
I
After hours on the evening of July 29, 2007, a friend asked
Brett Kohl, who worked at Mission Bay Jet Sports, for a jet
MISSION BAY JET SPORTS v. COLOMBO 7857
ski for himself and a group of friends. Kohl took a Sea-Doo
personal watercraft to Mission Bay, where he offered rides to
two teenagers, Haley Colombo and Jessica Slagel. With them
on board, he drove the watercraft in a cul-de-sac of the South
Pacific Passage that is reserved for personal watercraft by
posted signs and a north-south buoy line across the west, or
ocean-facing, side of the area. Slagel and Colombo allege in
a state court complaint that Kohl drove the watercraft in tight
circles at 25 miles per hour. They were tossed off once, asked
Kohl not to do it again, got back on, and were thrown off
again, this time with the unfortunate consequence that each
was seriously hurt by the force of the vessel’s jet propulsion
system. Kohl drove Colombo back to land, while a friend
drove Slagel. Care was administered by paramedics on shore
before Colombo and Slagel were taken to the hospital.
Mission Bay Jet Sports and its owner, Robert Adamson,
brought this action in federal district court under Federal Rule
of Civil Procedure 9(h)1 and Supplemental Rule F for Admi-
ralty or Maritime Claims,2 invoking the court’s admiralty
jurisdiction pursuant to 28 U.S.C. § 1333(1) and seeking
exoneration or limitation of their liability to the $6,005 value
of the watercraft under the Shipowners Limitation of Liability
Act, 46 U.S.C. § 30505. They also asked for an injunction
against further prosecution of the state court action as to them.
The district court stayed the state court action. Slagel and
Colombo moved to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(1) and (b)(6), contending that the court
lacked subject matter jurisdiction and that no relief was avail-
able under the Limitation of Liability Act.
1
Fed. R. Civ. P. 9(h) permits pleading of claims for relief that are
“within the admiralty or maritime jurisdiction and also within the court’s
subject-matter jurisdiction on some other ground.”
2
Fed. R. Civ. P., Supp. R. F permits the filing of a complaint under
admiralty jurisdiction for exoneration from, and limitation of liability for,
claims against a shipowner, and it outlines procedures for the limitation
action.
7858 MISSION BAY JET SPORTS v. COLOMBO
The district court found that the incident occurred on navi-
gable waters because the area was within the ebb and flow of
the tide of the Pacific Ocean. It also found that the cul-de-sac
was isolated, shallow, and without commercial shipping, and
that there were no docks, wharfs, or commercial establish-
ments in the personal watercraft area, that jet ski rental estab-
lishments are located outside Mission Bay Park, and that there
was no Coast Guard or Harbor Patrol rescue. The court con-
cluded that there was no potential impact on maritime com-
merce because the incident involved injuries from a single-
recreational vessel accident in an area where no commercial
shipping occurs. Accordingly, it dismissed the action for lack
of admiralty jurisdiction and, having done so, did not reach
applicability of the Limitation of Liability Act.
Mission Bay Jet Sports and Adamson timely appealed.3
II
[1] The United States Constitution grants original jurisdic-
tion to federal courts to hear admiralty claims. See U.S. Const.
art. III, § 2, cl. 1. This jurisdiction, codified at 28 U.S.C.
§ 1333(1), allows the filing of claims related to maritime con-
tracts and maritime torts. A party seeking to invoke federal
admiralty jurisdiction “over a tort claim must satisfy both a
location test and a connection test.” Gruver, 489 F.3d at 982
(citing Jerome B. Grubart, Inc. v. Great Lakes Dredge &
Dock Co., 513 U.S. 527, 534 (1995)). The tort must occur on
navigable waters and bear a “significant relationship to tradi-
tional maritime activity.” Foremost Ins. Co. v. Richardson,
457 U.S. 668, 674 (1982). Thus the “location” prong focuses
on “whether the tort occurred on navigable water or whether
3
We review a dismissal for lack of subject matter jurisdiction de novo,
Gruver v. Lesman Fisheries Inc., 489 F.3d 978, 982 (9th Cir. 2007), and
the district court’s findings of fact — which it is free to make on a Rule
12(b)(1) motion — for clear error, H2O Houseboat Vacations Inc. v. Her-
nandez, 103 F.3d 914, 916 (9th Cir. 1996).
MISSION BAY JET SPORTS v. COLOMBO 7859
injury suffered on land was caused by a vessel on navigable
water.” Grubart, 513 U.S. at 534. The “connection” or
“nexus” test “raises two issues.” Id. “A court, first, must
‘assess the general features of the type of incident involved’
to determine whether the incident has ‘a potentially disruptive
impact on maritime commerce.’ ” Id. (quoting Sisson v. Ruby,
497 U.S. 358, 363, 364 n.2 (1990)). “Second, a court must
determine whether ‘the general character’ of the ‘activity giv-
ing rise to the incident’ shows a ‘substantial relationship to
traditional maritime activity.’ ” Id. (quoting Sisson, 497 U.S.
at 364 & n.2, 365).
A
The parties do not dispute that the Sea-Doo personal water-
craft is a “vessel” for purposes of admiralty jurisdiction under
1 U.S.C. § 3. Nor is there a serious question that Mission Bay,
including the reserved area where the accident in this case
occurred, is a body of navigable water because it is open to
the Pacific Ocean and subject to the ebb and flow of tides. As
we held in Stone v. Paradise Holdings, Inc. (In re Complaint
of Paradise Holdings, Inc.), “in tidal waters, the ebb and flow
of the tides remains the standard.” 795 F.2d 756, 759 (9th Cir.
1986).
Colombo and Slagel argue that the personal watercraft area
should nevertheless not be considered navigable because it is
one to two miles from the ocean, past two bridges, cordoned
off by a row of buoys, and limited to personal watercraft.
While true, these facts have nothing to do with whether the
body of water is subject to the ebb and flow of the tides. Nor
do the buoys or the bridges form a barrier to commerce, as in
the cases upon which Colombo and Slagel rely. Cf. Adams v.
Mont. Power Co., 528 F.2d 437 (9th Cir. 1975) (holding that
federal courts had no jurisdiction over a tort claim on a stretch
of the Missouri River dammed at both ends and situated
entirely within the State of Montana); LeBlanc v. Cleveland,
198 F.3d 353 (2d Cir. 1999) (holding that the waters in an
7860 MISSION BAY JET SPORTS v. COLOMBO
area of the Hudson River were not navigable because they
were not accessible to the ocean or continuous boating given
nine dams and several water falls); In re Complaint of Three
Buoys Houseboat Vacations U.S.A. Ltd. v. Morts, 921 F.2d
775 (8th Cir. 1990) (holding that the Lake of the Ozarks was
not navigable water because it is entirely contained within the
State of Missouri and entry or exit is blocked by the Bagnell
Dam). Although commercial vessels and personal watercraft
are supposed to operate in different areas of Mission Bay, it
is a rule that keeps personal watercraft from venturing beyond
the cul-de-sac to the ocean, or vice-versa for other vessels.
The reserved area itself is several hundred feet wide and from
8 to 10 feet deep. The area is neither enclosed nor obstructed;
the rest of Mission Bay, as well as the Pacific Ocean, are
accessible for trade or travel.
[2] We conclude that the waters where the accident
occurred, being subject to tidal influence, meet the definition
of “navigable waters” for purposes of admiralty jurisdiction.
B
Whether the general features and character of the particular
incident have a sufficient “connection” or “nexus” to mari-
time commerce is a more difficult question, but one we are
guided by Foremost, Sisson, and Grubart to answer affirma-
tively.
[3] In Foremost, the Court upheld admiralty jurisdiction
over the collision of two pleasure boats on the navigable
waters of the Amite River in Louisiana. In doing so, the Court
reiterated that the wrong must have a significant relationship
with traditional maritime activity, but that the maritime activ-
ity need not be a commercial one. 457 U.S. at 674. It sufficed
that the wrong in that case involved the negligent operation of
a vessel on navigable waters. As the Court explained:
The federal interest in protecting maritime com-
merce cannot be adequately served if admiralty juris-
MISSION BAY JET SPORTS v. COLOMBO 7861
diction is restricted to those individuals actually
engaged in commercial maritime activity. This inter-
est can be fully vindicated only if all 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 maritime com-
merce. For example, if these two boats collided at
the mouth of the St. Lawrence Seaway, there would
be a substantial effect on maritime commerce, with-
out regard to whether either boat was actively, or had
been previously, engaged in commercial activity.
Id. at 674-75 (emphasis in original).
The tort claims in Sisson arose when a fire (caused by a
defective washer/dryer) aboard a pleasure boat docked at a
marina, burned the boat, some other boats, and the marina.
The Court distilled the inquiry to two points: that the incident
causing the harm — burning boats at a marina on navigable
waters — was of a sort “likely to disrupt [maritime] commer-
cial activity,” 497 U.S. at 363, and that the activity giving rise
to the incident — storing a vessel on navigable waters — bore
a substantial relationship to traditional maritime activity, id.
at 364-67.
Grubart further explicated the Sisson test. There, a suit in
admiralty was brought by owners of downtown Chicago
buildings that were flooded as a result of work done by a
crane that was sitting on a barge in the Chicago River. The
crane drove piles into the riverbed, but this activity weakened
an underwater tunnel such that eventually the tunnel (and
buildings in the Loop) were opened to river water. 513 U.S.
at 529. Noting that the first prong of the Sisson test goes to
potential effects, not the particular facts of the actual incident,
the Court indicated that the incident being examined should
be described “at an intermediate level of possible generality.”
Id. at 538. Thus, Grubart described the “general features” of
7862 MISSION BAY JET SPORTS v. COLOMBO
the flooding incident “as damage by a vessel in navigable
water to an underwater structure.” Id. at 539. So described,
the Court had little difficulty concluding this is the sort of
incident that has a potentially disrupting impact on maritime
commerce. Id. Moving to the second part of the Sisson test,
the Court framed the inquiry as whether the “general charac-
ter of the activity giving rise to the incident shows a substan-
tial relationship to traditional maritime activity.” Id. It pointed
out that “[n]avigation of boats in navigable waters clearly
falls within the substantial relationship.” Id. at 540 (citing
Foremost, 457 U.S. at 675). Then the Court characterized the
activity that gave rise to flooding “as repair or maintenance
work on a navigable waterway performed from a vessel.” Id.And it concluded that this activity was substantially related to
traditional maritime activity because barges and similar ves-
sels have traditionally done that sort of work. Id.Since Foremost, Sisson, and Grubart, we have taken an
inclusive view of what general features of an incident have a
potentially disruptive effect on maritime commerce. For
example, in Gruver we held that an employer’s assault on a
crewman on a fishing vessel had a potentially detrimental
effect on maritime commerce by depriving the vessel of a
deckhand due to his injuries. 489 F.3d at 982-83. In Tagha-
domi v. United States, 401 F.3d 1080, 1086 (9th Cir. 2005),
we held that injury to boaters, whose vessel capsized at sea,
caused by a potential rescuer’s negligence in carrying out its
rescue operation could potentially affect maritime commerce
because the “efficacy of search-and-rescue operations has a
direct effect on the health and lives of seamen,” and “insofar
as the rescuer can preserve the vessel, it prevents economic
loss to the vessel’s owner.” In Wallis v. Princess Cruises,
Inc., 306 F.3d 827, 840-41 (9th Cir. 2002), we held that a
claim for intentional infliction of emotional distress by a pas-
senger on a cruise ship stemming from a master’s speculation
that the passenger’s husband, who had fallen overboard, had
probably been “chopped up” by the ship’s propellers, came
within admiralty jurisdiction as the incident involved a “cruise
MISSION BAY JET SPORTS v. COLOMBO 7863
ship’s treatment of passengers generally,” which “clearly has
potential to disrupt commercial activity.” Cf. H2O Houseboat,
103 F.3d at 916-17 (holding that a family’s being poisoned by
carbon monoxide aboard a houseboat tied to the shore of Lake
Havasu could not disrupt maritime commerce).4
[4] Applying these cases here, we believe the incident is
best described as harm by a vessel in navigable waters to a
passenger. Although Colombo and Slagel point out that this
particular incident did not actually disrupt commercial activ-
ity, the disruption prong does not turn on what happened in
this particular case but on whether the general features of the
incident have a potentially disruptive effect. We think it fol-
lows from Foremost, Sisson, and Grubart, as well as their
progeny in this circuit, that an incident of this class could
have a potentially disruptive impact. Among other things, a
vessel from which a passenger goes overboard in navigable
waters would likely stop to search and rescue, call for assis-
tance from others — which, in this area, could include the
Coast Guard5 and in fact did involve another vessel — and
ensnarl maritime traffic in the lanes affected.
[5] So far as the second prong is concerned, we believe the
activity giving rise to the incident is best characterized as
operating a vessel in navigable waters. As Foremost and Gru-
4
Compare Mink v. Genmar Indus., Inc., 29 F.3d 1543, 1546 (11th Cir.
1994) (holding that a maritime nexus was shown where an injured passen-
ger who was slammed to the deck “could have fallen forward, striking the
pilot or controls, thus directly interfering with the navigation of the craft
and potentially causing an accident with another craft,” or “the disruption
of a serious passenger injury within such intimate confines could have dis-
tracted the pilot and indirectly interfered with the navigation of a vessel”).
5
Coast Guard navigational rules apply. See 33 U.S.C. §§ 2001(a) &
2003(o) (applying rules to all vessels on navigable waters shoreward of
navigation demarcation lines dividing high seas from harbors); 33 C.F.R.
§ 80.1106 (establishing demarcation line between “Mission Bay South
Jetty Light 2 to Mission Bay North Jetty Light 1” at the entrance of Mis-
sion Bay, which includes the area reserved for personal watercraft).
7864 MISSION BAY JET SPORTS v. COLOMBO
bart say, this “clearly falls within the substantial relation-
ship.” Grubart, 513 U.S. at 540 (citing Foremost, 457 U.S. at
675); see Paradise Holdings, 795 F.2d at 760 (observing that
the alleged wrong was the negligent operation of a vessel in
navigable waters).6 Vessels have traditionally carried passen-
gers across navigable waters. Being a vessel, this jet ski has
a maritime connection.
Like Grubart, Colombo and Slagel argue that this reads Sis-
son too broadly. Like Grubart, we don’t think so. See 513
U.S. at 542-43. Unlike Executive Jet Aviation, Inc. v. City of
Cleveland, 409 U.S. 249 (1972), for example, where an air-
plane crashing fortuitously into navigable waters was not
maritime-related, here there is a clear connection between a
vessel traveling on navigable waters, causing injury to a pas-
senger, and traditional maritime activity.
[6] We conclude that the incident occurred on navigable
waters. Its general features — harm by a vessel in navigable
waters to a passenger — had a potential effect on maritime
commerce, and the general character of the activity — opera-
tion of a vessel in navigable waters — had a substantial rela-
tionship to traditional maritime activity. Consequently, the
federal district court had admiralty jurisdiction.
6
See also Hogan v. Overman, 767 F.2d 1093, 1094 (4th Cir. 1985)
(holding, in a case where a water skier sued the owner of the boat that was
towing him when he fell and injured himself, the allegation of “naviga-
tional error” or the “negligent operation of a vessel on navigable waters”
that gave rise to the skier’s injury was sufficient to show a substantial rela-
tionship with traditional maritime activity); cf. Foster v. Peddicord, 826
F.2d 1370, 1375 & n.1 (4th Cir. 1987) (distinguishing Hogan where two
water skiers collided and sued each other, noting that, unlike “Foremost
. . ., the controversy in this case does not arise out of an alleged naviga-
tional error such as occurs when a pleasure craft collides with a swimmer,
water skier, reef, or another vessel”).
MISSION BAY JET SPORTS v. COLOMBO 7865
III
Because it thought that admiralty jurisdiction was lacking,
the district court understandably never reached the issue of
whether a claim could proceed under the Shipowners Limita-
tion of Liability Act. This inquiry may involve factual ques-
tions on which the record is undeveloped. For these reasons,
we prefer not to decide issues arising under the Act ourselves.
Instead, we leave them for the district court to consider in the
first instance. Accordingly, having determined that the court’s
admiralty jurisdiction was properly invoked, we remand for
further proceedings.
REVERSED AND REMANDED.