Tagliere, Lucille v. Harrah's IL Corp

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2637
LUCILLE TAGLIERE,
Plaintiff-Appellant,
v.
HARRAH’S ILLINOIS CORPORATION,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 5258—Arlander Keys, Magistrate Judge.
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ARGUED FEBRUARY 24, 2006—DECIDED MAY 3, 2006
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Before BAUER, POSNER, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. The defendant owns and operates
a riverboat casino that at the time of the plaintiff’s
accident had for the previous two years been moored to a
pier on a navigable portion of the Des Plaines River in
Illinois; Illinois law permits a casino boat to be moored
indefinitely. The plaintiff was playing a slot machine
when the stool she was leaning against collapsed and she
fell, injuring herself. The boat was stationary when the
accident occurred rather than rocking back and forth in the
wash of a passing boat. Nevertheless the plaintiff filed
2 No. 05-2637
suit in federal district court under the admiralty law. The
defendant moved to dismiss the suit on the ground that
it was not within the admiralty jurisdiction. The district
court granted the motion.
Had the casino been located on the pier rather than in a
boat moored to it, there would be no argument that the
plaintiff’s claim was an admiralty claim. Since the boat
was moored indefinitely, it could be thought the equiva-
lent of landfill, and an accident occurring on landfill
adjacent to navigable waters is not within the admiralty
jurisdiction unless (as we’ll see) the accident involved the
boat’s colliding with or otherwise damaging something on
the land. The accident in our case had nothing to do with
the fact that the casino was on a boat afloat on a navigable
stream rather than sitting on dry land. And so whatever
distinctive rules of liability admiralty courts have developed
would be no better suited, and perhaps would be worse
suited, to the resolution of this accident case than ordinary
state tort law would be. There is, therefore, common-sense
appeal to the district court’s ruling that the suit is not within
the admiralty jurisdiction.
But the most important requirement of a jurisdictional
rule is not that it appeal to common sense but that it be
clear. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 202
(1988); Hoagland v. Sandberg, Phoenix & Von Gantard, P.C.,
385 F.3d 737, 739-40 (7th Cir. 2004); In re Kilgus, 811 F.2d
1112, 1117 (7th Cir. 1987); Cohen v. Empire Blue Cross & Blue
Shield, 176 F.3d 35, 42 (2d Cir. 1999); Long v. Sasser, 91
F.3d 645, 647 (4th Cir. 1996). It is very unfortunate when
parties are not sure which court they should be litigating
their dispute in, as the case at hand illustrates. The plaintiff
brought suit within the three-year statute of limitations
applicable to admiralty tort suits, 46 U.S.C. App. § 763a;
No. 05-2637 3
Alderman v. Pacific Northern Victor, Inc., 95 F.3d 1061, 1065-66
(11th Cir. 1996); Usher v. M/V Ocean Wave, 27 F.3d 370, 371
(9th Cir. 1994) (per curiam), but the statute of limitations
applicable to personal-injury suits under Illinois law is only
two years, 735 ILCS 5/13-202, so that if the ruling stands the
plaintiff is barred from any judicial relief because she sued
more than two years after the accident.
Congress has extended the admiralty jurisdiction to “all
cases of damage or injury, to person or property, caused
by a vessel on navigable water.” Extension of Admiralty
Jurisdiction Act, 46 U.S.C. App. § 740. Since “vessel” has
been interpreted to include the vessel’s fixtures, furniture,
and other “appurtenances,” Jerome B. Grubart, Inc. v. Great
Lakes Dredge & Dock Co., 513 U.S. 527, 535 (1995); Scott v.
Trump Indiana, Inc., 337 F.3d 939, 943 (7th Cir. 2003); Ander-
son v. United States, 317 F.3d 1235, 1237-38 (11th Cir. 2003),
the injury resulting from the defective stool in this case was
an injury caused by a vessel. Kermarec v. Compagnie Generale
Transatlantique, 358 U.S. 625, 626-28 (1959); Palmer v. Fayard
Moving & Transportation Corp., 930 F.2d 437, 441 (5th Cir.
1991), and cases cited there. The vessel was on navigable
waters, moreover, and while the Supreme Court has now
held that a boat that “has been permanently moored or
otherwise rendered practically incapable of transportation
or movement” is not a “vessel” for purposes of admiralty
jurisdiction, Stewart v. Dutra Construction Co., 543 U.S. 481,
494 (2005), there has been no showing that the boat in our
case, though stationary for the past two years, is permanently
moored in the Court’s sense (disabled from sailing) and is
thus the equivalent of landfill.
To subject an accident that occurs on a vessel afloat on a
navigable body of water, and that is caused by the vessel
or by some object in or attached to it, to the admiralty
jurisdiction is a natural application of the Extension of
4 No. 05-2637
Admiralty Jurisdiction Act. St. Hilaire Moye v. Henderson, 496
F.2d 973, 979 (8th Cir. 1974); 1 Robert Force & Martin J.
Norris, The Law of Maritime Personal Injuries § 1:17 (5th ed.
2005); David W. Robertson & Michael F. Sturley, “The
Admiralty Extension Act Solution,” 34 J. Maritime L. &
Commerce 209, 239-43, 269-73, 297 (2003); Russell J. Smith,
Note, “Congress Giveth and the Fifth Circuit Taketh
Away: Post Executive Jet Viability of the Admiralty Ex-
tension Act,” 6 U. San Francisco Maritime L.J. 609 (1994). But
this is on the assumption that the Act is indeed, as its
title and language suggest, an independent basis of fed-
eral jurisdiction—independent, that is, of the basic grant
of admiralty jurisdiction in 28 U.S.C. § 1333(1). And so the
Eighth Circuit held in the St. Hilaire case, cited above,
though the Supreme Court left the question open in Jerome
B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., supra,
513 U.S. at 543 n. 5, as it had earlier done in Sisson v. Ruby,
497 U.S. 358, 359 n. 1 (1990). But the Fifth and Eleventh
Circuits have rejected (though without citing) St. Hilaire.
Sohyde Drilling & Marine Co. v. Coastal States Gas Producing
Co., 644 F.2d 1132, 1135-36 (5th Cir. 1981); Crotwell v.
Hockman-Lewis, Ltd., 734 F.2d 767, 768 (11th Cir. 1984). They
have done this on the basis of legislative history. That
history indicates that the Act’s purpose was merely to make
clear that accidents caused by boats on navigable waters are
within the admiralty jurisdiction even if the damage caused
by the accident was to something on the land. H.R. Rep. No.
1523, 80th Cong., 2d Sess. (1948); S. Rep. No. 1593, 80th
Cong., 2d Sess. (1948).
We do not think that the legislative history should
override the broad statutory language, which provides
a clear and simple jurisdictional test for cases like this,
in contrast to the vague “maritime nexus” (or “connection”)
test (“the party seeking to invoke maritime jurisdiction must
No. 05-2637 5
show a substantial relationship between the activity giving
rise to the incident and traditional maritime activity,” Sisson
v. Ruby, supra, 497 U.S. at 364) that is used to determine
jurisdiction under section 1333(1), which confers but does
not define admiralty jurisdiction. Our case would pass that
test as well; vagueness has it uses.
The main practical use of the “connection” test has been
to expel from the admiralty jurisdiction freak cases. Thus, in
describing the application of the test the Supreme Court in
Grubart cited a case involving a plane crash in which a
portion of the wreckage slid into navigable waters, Executive
Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249 (1972), the
case of a swimmer diving off a pier into navigable waters,
Chapman v. City of Grosse Pointe Farms, 385 F.2d 962 (6th Cir.
1967), and the case of a motorist rear-ended while waiting
for a ferry on the ferry’s landing, which happened to be a
floating pontoon. Peytavin v. Government Employees Ins. Co.,
453 F.2d 1121 (5th Cir. 1972). Grubart itself involved the
flooding of tunnels and basements in Chicago caused by the
fact that months earlier a crane sitting on a barge had driven
piles too far into a riverbed above a tunnel.
Yet unusual as were the facts in Grubart, the case was
about an appurtenance (the crane) of a boat (a barge) afloat
on navigable waters and an accident, albeit on land, caused
by the handling of the appurtenance. A passage in the
Court’s opinion suggests that the Court thought the case
rather simple: “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 activity far removed from anything
traditionally maritime.” 513 U.S. at 542. The “location” rule
at its broadest was that any accident that occurs on naviga-
6 No. 05-2637
ble waters is within the admiralty jurisdiction. The Plymouth,
70 U.S. (3 Wall.) 20, 36 (1865). That would have encom-
passed the airplane, swimmer, and motorist cases, and the
Court made clear in Grubart that it wouldn’t go that far.
When a boat is involved, however, the location rule is not
only thoroughly compatible with the language of the
Extension of Admiralty Jurisdiction Act, but appears to have
survived Grubart and thus to be the test under the general
admiralty jurisdiction conferred by 28 U.S.C. § 1333(1), as
well.
Weaver v. Hollywood Casino-Aurora, Inc., 255 F.3d 379, 386-
87 (7th Cir. 2001), found even the “connection” test of
Grubart and Sisson satisfied in a case like the present one, the
main difference being that the injury was to a crewmember
of the gambling boat rather than to a passenger. An injury
to a crewmember is somewhat more likely to affect mari-
time commerce than an injury to a passenger, because the
crewmember might be vital to the operation of the boat and
difficult to replace immediately. Yet even an injury to a
passenger could have a disruptive effect, if the boat had to
make an unscheduled stop to get him to a hospital (not that
that could have happened here, since the boat was moored),
or if the injury revealed a dangerous condition that required
time-consuming repairs. We do not think it necessary to
split these hairs—especially since effect on maritime
commerce is not necessary to admiralty jurisdiction.
We acknowledge that the distinctive substantive and
procedural features of admiralty law, such as the longer
statute of limitations and the absence of a right to a jury
trial, were not designed for the kind of accident that oc-
curred here, an accident that owed nothing to its maritime
setting. So our suggested rule encroaches on a regulatory
domain that might well be thought to belong more properly
No. 05-2637 7
to state courts and legislatures than to federal admiralty
courts. But to decide in each case whether admiralty law or
state law would make a better fit with the particular circum-
stances of the accident that had given rise to the suit would
make the determination of jurisdiction hopelessly uncertain.
It is not a price worth paying for the slightly better match of
law to fact that would result.
We say “slightly” better because the tort principles
applied to maritime accidents that as in this case mirror
terrestrial accidents are similar. But this is not to deny
the significance of different limitations periods and a
different factfinder (judge versus jury). And while these
differences are to an extent offsetting—the longer stat-
utory period favors the plaintiff but the denial of jury trial
favors the defendant—others may not be. We summarize
them briefly: (1) Nonpecuniary damages are generally
disallowed in personal-injury suits under admiralty law.
Robert Force, “Tort Reform by the Judiciary: Developments
in the Law of Maritime Personal Injury and Death Dam-
ages,” 23 Tulane Maritime L.J. 351, 361 (1999); see, e.g., In re
Amtrack “Sunset Limited” Train Crash, 121 F.3d 1421, 1429
(11th Cir. 1997). (2) A shipowner owes a uniform duty of
care to everyone lawfully on board his ship, whereas
some states still impose different standards of care on
landowners with respect to different classes of visitors, such
as business invitees and licensees. Kermarec v. Compagnie
Generale Transatlantique, supra, 358 U.S. at 630; Everett v.
Carnival Cruise Lines, 912 F.2d 1355, 1358 (11th Cir. 1990). (3)
Admiralty tort plaintiffs can sue the vessel itself even when
the owner has no liability. 2 Thomas J. Schoenbaum,
Admiralty and Maritime Law § 21-3 (4th ed. 2004); see, e.g.,
United States v. Republic Marine, Inc., 829 F.2d 1399, 1400-
01 (7th Cir. 1987). (4) The Limitation of Shipowners’ Liabil-
ity Act, 46 U.S.C. App. § 181, generally limits a shipowner’s
8 No. 05-2637
liability to the value of his investment in the vessel and
freight, other than in personal-injury or wrongful-death
actions.
Without meaning to minimize these differences,
which figure importantly in some cases, an effort to deter-
mine admiralty jurisdiction case by case by estimating the
relative closeness of fit of state law and admiralty law to the
particular circumstances of the case would create more
uncertainty than efficiency. We conclude that the district
court erred in dismissing the suit, though it is open to the
defendant to show on remand, if it can, that its boat was
permanently rather than merely indefinitely moored when
the accident occurred and was therefore no longer a “vessel”
for purposes of admiralty jurisdiction. The difference
between “permanently” and “indefinitely” in this context is
vague and has not been explored by the parties. The Stewart
case suggests that the boat must be permanently incapaci-
tated from sailing. Yet maybe—by analogy to the difference
between domicile and residence—a boat also is “perma-
nently” moored when its owner intends that the boat will
never again sail, while if he has not yet decided its ultimate
destiny it is only “indefinitely” moored. These are matters
for exploration on remand.
REVERSED AND REMANDED.
No. 05-2637 9
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-3-06