15‐665 In Re Petition of Bruce Germain

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

_______________

August Term, 2015

(Argued: February 29, 2016 Decided: June 1, 2016)

Docket No. 15‐665 _______________

IN RE PETITION OF BRUCE GERMAIN

_______________

BRUCE GERMAIN,

Petitioner‐Appellant,

MATTHEW F. FICARRA,

Claimant‐Appellee.* _______________

B e f o r e:

KATZMANN, Chief Judge, SACK and LOHIER, Circuit Judges. _______________ Appeal from the dismissal of a petition for exoneration from or limitation of liability under the Limitation of Liability Act of 1851, 46 U.S.C. §§ 30501–12, for lack of subject matter jurisdiction. Applying the Supreme Court’s multi‐part test for admiralty tort jurisdiction, the United States District Court for the Northern District of New York (Sannes, J.) dismissed Petitioner‐Appellant Bruce Germain’s petition for lack of jurisdiction, holding that a recreational injury occurring on a recreational vessel anchored in a shallow recreational bay of navigable waters could not disrupt maritime commerce and did not bear a sufficient relationship to traditional maritime activity. Although we believe the district court correctly articulated the Supreme Court’s modern test for admiralty tort jurisdiction, we respectfully disagree with its conclusion that jurisdiction is lacking here. Accordingly, we REVERSE and REMAND for further proceedings. _______________

JAMES E. MERCANTE, Rubin Fiorella & Friedman LLP, New York, NY, for Petitioner‐Appellant.

JAN S. KUBLICK, McMahan, Kublick & Smith, PC, Syracuse, NY, for Claimant‐Appellee.

_______________

KATZMANN, Chief Judge:

In broad strokes, this case concerns a tort involving a vessel on navigable

waters. More specifically, the case involves a diving accident off a recreational

vessel anchored in shallow but navigable lake waters. Before the 1970s, it would

have been beyond doubt that such facts would place this case squarely in the

jurisdiction of the federal courts, because the traditional test for admiralty tort

* The Clerk of Court is respectfully directed to amend the caption as indicated above.

2 jurisdiction simply asked whether the tort occurred on navigable waters.

But in 1972, the Supreme Court began refining the situs rule, or locality test,

for admiralty tort jurisdiction to weed out “absurd” cases that had little to do

with maritime commerce, such as planes crashing into lakes or swimmers

colliding into each other. In three subsequent cases, the Court further developed

this test, creating a multi‐part inquiry designed to address cases at the margin of

admiralty jurisdiction. In addition to location, the prevailing test now focuses on

whether the incident giving rise to the tort, defined at an “intermediate level of

possible generality,” has a “potentially disruptive effect on maritime commerce,

and whether the general character of the activity giving rise to the incident bears a

substantial relationship to traditional maritime activity.” Tandon v. Captain’s Cove

Marina of Bridgeport, Inc.,

, 247–48 (2d Cir. 2014).

Applying this test, the United States District Court for the Northern District

of New York (Sannes, J.) held that admiralty jurisdiction was lacking here. The

district court reasoned that a recreational injury occurring on a recreational vessel

anchored in a shallow recreational bay of navigable waters could not disrupt

maritime commerce and did not bear a sufficient relationship to traditional

3 maritime activity. Although we believe the district court correctly articulated the

Supreme Court’s modern test for admiralty tort jurisdiction, we respectfully

disagree with its conclusion that jurisdiction is lacking here. Indeed, the Supreme

Court has instructed us that, “ordinarily,” “every tort involving a vessel on

navigable waters falls within the scope of admiralty jurisdiction.” Jerome B.

Grubart, Inc. v. Great Lakes Dredge & Dock Co.,

(1995).

Accordingly, we REVERSE and REMAND for further proceedings consistent with

this opinion.

Standard of Review

“When reviewing a district court’s determination of subject matter

jurisdiction pursuant to Rule 12(b)(1), we review factual findings for clear error

and legal conclusions de novo.” Tandon,

(brackets omitted) (quoting

Close v. New York,

(2d Cir. 1997)). “It is . . . well established that

when the question is subject matter jurisdiction, the court is permitted to rely on

information beyond the face of the complaint.” St. Paul Fire & Marine Ins. Co. v.

Universal Builders Supply,

(2d Cir. 2005); see also Kamen v. Am. Tel. &

Tel. Co.,

(2d Cir. 1986) (“[W]hen, as here, subject matter

4 jurisdiction is challenged under Rule 12(b)(1), evidentiary matter may be

presented by affidavit or otherwise.”).1

Factual Background

The district court found that, on July 30, 2011, Petitioner‐Appellant Bruce

Germain, Claimant‐Appellee Matthew Ficarra, and three others left Brewerton,

New York, on the shore of Lake Oneida, for an excursion on Germain’s 38‐foot

motor boat, Game Day. See Ficarra v. Germain,

(N.D.N.Y.

2015). Lake Oneida is connected to and part of the New York State Erie Canal

System.

Using a federal shipping lane, the five headed to the shallow Three

Mile Bay, a popular spot for recreational swimming on Lake Oneida that is less

than a nautical mile from the federal shipping lane.

When Germain, Ficarra,

and the three other guests anchored at around 12:30 p.m., the bay was already

crowded with other boats.

1 As discussed in the procedural history section, the present appeal concerns one of two separate but related actions that the district court collectively addressed in a single memorandum‐decision and order. Because of the semi‐consolidated nature of the two actions and their overlapping issues, the district court relied on “uncontroverted facts in the complaints in each case,” i.e., the negligence complaint and the limitation petition (which in turn referenced the negligence complaint), and it also considered the facts presented in the parties’ affidavits that were filed in both actions. See Ficarra v. Germain,

, 312 n.2 (N.D.N.Y. 2015).

5 Around 6:00 p.m., Germain began preparing for the return trip to

Brewerton, and Ficarra and the other passengers2 began returning to the boat.

At some point while Germain and the other passengers were preparing the vessel

for the return trip, Ficarra dived3 off the port side into the water.

Ficarra

climbed back on board and entered the water again, this time doing a back flip

from the back of the boat that resulted in his striking his head on the lake floor.

at 312–13. Germain and others then jumped into the water to assist Ficarra.

Local rescue and police boats later arrived at the scene, and they took Ficarra back

across Lake Oneida to Brewerton via the federal shipping lane.4

. Doctors

2 As in Tandon, “[w]e use the term ‘passenger’ throughout in its broad general sense of ‘a person who travels in a conveyance . . . without participating in its operation,’”

n.2 (quoting passenger, n., The American Heritage Dictionary 1285 (4th ed. 2000)), rather than its more technical sense under admiralty and maritime law, see, e.g., 1 Thomas J. Schoenbaum, Admiralty and Maritime Law § 5‐5 at 269–70 (5th ed. 2011). 3 “Although dove is fairly common in [American English] (on the analogy of drove), dived is the predominant past‐tense form—and the preferable one.” Bryan A. Garner, Garner’s Modern American Usage 269 (3d ed. 2009). 4 At oral argument, Ficarra’s attorney disputed whether Ficarra had been taken back to Brewerton by boat, but he candidly admitted that he could not provide a record citation for his view of events. We rely on the facts found by the district court, which are not clearly erroneous. In any event, whether Ficarra was actually taken back to Brewerton by boat or other means does not affect our analysis.

6 later determined that Ficarra suffered a serious spinal cord injury causing

paralysis and quadriplegia. Id.

Procedural History

On June 16, 2014, Ficarra filed suit against Germain in New York State

Supreme Court, asserting claims for negligence under New York law. Ficarra’s

complaint alleges, among other things, that Germain was negligent for failing: (1)

to operate, captain, anchor, maintain, or control his vessel in a safe and

reasonably prudent manner to protect the safety and welfare of his boat’s

passengers; (2) to properly and adequately instruct his passengers on safe boating

and diving practices; (3) to properly and adequately inspect the area in which his

boat was anchored; and (4) to adequately warn his passengers of the dangerous

conditions existing at the time of the aforementioned incident.

On July 17, 2014, Germain removed Ficarra’s negligence suit to the United

States District Court for the Northern District of New York. On August 18, 2014,

Ficarra moved to remand the action back to state court for lack of subject matter

jurisdiction, arguing that the claims alleged in his complaint were not within the

scope of admiralty jurisdiction.

7 On August 14, 2014, Germain filed a petition in the United States District

Court for the Northern District of New York seeking exoneration from or

limitation of liability under the Limitation of Liability Act of 1851, 46 U.S.C.

§§ 30501–12, and Rule F of the Supplemental Rules for Admiralty or Maritime

Claims and Asset Forfeiture Actions (“Rule F”).5 On August 20, 2014, the district

court (Kahn, J.) issued an order in the limitation proceeding directing Germain

“to submit a brief explaining why his [petition] should not be dismissed for lack

of subject matter jurisdiction.” App. 38. As ordered, Germain filed a brief,

affidavit, and related exhibits in support of his limitation petition, and he also

filed these same papers in opposition to Ficarra’s motion to remand in the

separate negligence action.

Both the negligence action and limitation proceeding were then transferred

to a different judge on December 29, 2014. In a single memorandum‐decision and

order, the district court (Sannes, J.) concluded that Ficarra’s claims did not meet

the modern test for admiralty tort jurisdiction. See Ficarra, 91 F. Supp. 3d at 313–

5 As in Tandon, “we adhere to the more common practice of using the terms ‘petition’ and ‘petitioner’” under the Limitation of Liability Act rather than “complaint” and “plaintiff.”

n. 1 (citing 3 Benedict on Admiralty § 1 (7th ed. rev. 2009)).

8 17.6 And because the district court held that it lacked jurisdiction to hear either

action, it remanded the negligence suit and dismissed the limitation petition. Id. at

318.

Germain filed notices of appeal in both actions, but he voluntarily

withdrew the notice of appeal in the remanded negligence suit, recognizing that,

under

(d), “[a]n order remanding a case to the State court from

which it was removed is not reviewable on appeal or otherwise,” unless the case

was removed pursuant to

or 1443. Accordingly, the only appeal

presently before us is the district court’s dismissal of Germain’s limitation

petition.

Discussion

The key issue on appeal is whether federal courts have admiralty

jurisdiction over claims for injury to a passenger who jumped from a vessel on

open navigable waters. They do. But before we reach this question, we must first

6 The district court also rejected Germain’s untimely argument for diversity jurisdiction, see Ficarra, 91 F. Supp. 3d. at 317–18, a rejection that Germain does not challenge on appeal.

9 address Ficarra’s primary argument that the present appeal is an improper attack

on the district court’s remand order. It is not.

I.

Ficarra’s primary argument in opposition to Germain’s appeal is that

Germain’s appeal of the limitation petition’s dismissal is an improper attack on

the district court’s remand order, which Germain did not—indeed, could not—

appeal. In short, and as discussed in greater detail below, because admiralty cases

involving petitions for limitation of liability may proceed on dual tracks in state

and federal court, Germain is entitled to appeal the dismissal of his limitation

petition.

The Constitution provides that “[t]he judicial Power shall extend . . . to all

Cases of admiralty and maritime Jurisdiction.” U.S. Const. art. III, § 2. Congress

codified this constitutional grant of admiralty and maritime jurisdiction in

(1), which provides that “[t]he district courts shall have original

jurisdiction, exclusive of the courts of the States, of . . . [a]ny civil case of

admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies

to which they are otherwise entitled.” The interaction between the exclusivity

10 clause and the saving‐to‐suitors clause of § 1333(1) has caused much confusion.

See, e.g., Lewis v. Lewis & Clark Marine, Inc.,

(2001) (“What the

drafters of the Judiciary Act intended in creating the saving to suitors clause is not

entirely clear and has been the subject of some debate.”).

Adding to the confusion is a separate statute, the Limitation of Liability Act

of 1851, 46 U.S.C. §§ 30505–12, which Congress enacted “to encourage ship‐

building and to induce capitalists to invest money in this branch of industry.”

Tandon, 752 F.3d at 243–44 (quoting Lewis,

). As we explained in

Tandon, “[u]nder the present version of this statute, ‘the liability of the owner of a

vessel for any claim, debt, or liability [covered by the Act] shall not exceed the

value of the vessel and pending freight.”

at 244 (quoting

(a)).

More specifically, the Limitation of Liability Act creates “a form of action

peculiar to the admiralty and maritime context,” allowing the owner of a vessel to

file a petition in federal court seeking total exoneration from or limitation of

liability for “damages caused by the negligence of his captain or crew.”

at 243–

44; see also

(a); Rule F. Typically, “[o]nce the owner files a petition

for limitation, ‘all [other] claims and proceedings against the owner related to the

11 matter in question shall cease.’” Tandon,

(quoting

(c)). Notice is then sent to all persons asserting claims affected by the

limitation proceeding, who may file claims and challenge the petitioner’s right to

limitation or exoneration. See

“If the petition for limitation of liability is

granted, the owner can be liable on the covered claims only up to the total value

of his vessel and its pending freight; that amount will then be distributed pro rata

among the proven claims.”

As this brief discussion reveals, “[s]ome tension exists between the saving

to suitors clause and the Limitation Act. One statute gives suitors the right to a

choice of remedies, and the other statute gives vessel owners the right to seek

limitation of liability in federal court.” Lewis,

. To resolve this

tension, “the Courts of Appeals have generally permitted claimants to proceed

with their claims in state court where there is only a single claimant . . . or where

the total claims do not exceed the value of the limitation fund.”

. In Lewis,

the Supreme Court endorsed this practice, and it further clarified that

[t]he district courts have jurisdiction over actions arising under the Limitation Act, and they have discretion to stay or dismiss Limitation Act proceedings to allow a suitor to pursue his claims in state court. If the district court concludes that the vessel owner’s

12 right to limitation will not be adequately protected—where for example a group of claimants cannot agree on appropriate stipulations or there is uncertainty concerning the adequacy of the fund or the number of claims—the court may proceed to adjudicate the merits, deciding the issues of liability and limitation. But where . . . the District Court satisfies itself that a vessel owner’s right to seek limitation will be protected, the decision to dissolve the injunction [staying the state court proceeding] is well within the court’s discretion.

(citations omitted). “In sum, [the] Court’s case law makes clear that state

courts, with all of their remedies, may adjudicate claims . . . against vessel owners

so long as the vessel owner’s right to seek limitation of liability is protected.”

; see also 3 Benedict on Admiralty § 13 (7th ed. rev. 2015); 2 Thomas J.

Schoenbaum, Admiralty and Maritime Law § 15‐5 (5th ed. 2011); 13 Charles A.

Wright et al., Federal Practice and Procedure § 3527 (3d ed. 2008).

Because cases that involve limitation petitions may proceed on dual tracks

in state and federal court, there is nothing impermissible about Germain’s present

appeal. The district court concluded that admiralty jurisdiction was lacking for

either proceeding, a conclusion that necessitated remanding Ficarra’s negligence

suit and dismissing Germain’s limitation petition. But since the district court may

still be able to adjudicate his limitation petition if admiralty jurisdiction is present,

Germain’s appeal of the limitation petition’s dismissal is proper, even if that

13 appeal presses the existence of subject matter jurisdiction, contrary to the premise

of the district court’s remand order that jurisdiction was absent.

II.

Having addressed the propriety of the present appeal, we must now decide

whether the appeal has any merit. As a threshold matter, “[a]lthough the

Limitation of Liability Act provides a federal cause of action for a vessel owner

seeking exoneration or limitation, it ‘does not provide an independent foundation

for federal admiralty jurisdiction.’” Tandon,

(quoting MLC Fishing,

Inc. v. Velez,

(2d Cir. 2011) (per curiam)). In other words,

that a vessel owner may file a petition for limitation does not mean the district court necessarily has jurisdiction to hear it. Instead, the district court will only have admiralty jurisdiction to hear a petition for limitation if it already has admiralty jurisdiction over the underlying claims that the petition seeks to limit.

As in Tandon, our present task is therefore limited to determining “whether the

underlying claims raise a ‘civil case of admiralty or maritime jurisdiction’ that the

district court could hear under

(1).”

In answering this question, we first discuss the history of the modern test

for admiralty tort jurisdiction, placing that test in the context of the problem it

was designed to address. We then apply that test to the facts of this case, bearing

14 in mind this jurisprudential history. Although we disagree with the district

court’s application of the modern test, the test is far from a model of clarity and it

is more than understandable how the district court, in its thoughtful opinion,

could have gone off course.

A.

Traditionally, admiralty jurisdiction “over tort actions was determined

largely by the application of a ‘locality’ test.” Sisson v. Ruby,

(1990). That is, “[t]he 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.” Grubart, 513 U.S. at

531–32; see also The Plymouth,

(1866) (“Every species of tort, however

occurring, and whether on board a vessel or not, if upon the high seas or

navigable waters, is of admiralty cognizance.”).

In 1948, however, Congress expanded this narrow rule when it enacted the

Extension of Admiralty Jurisdiction Act, which provides that

[t]he admiralty and maritime jurisdiction of the United States extends to and includes cases of injury or damage, to person or property, caused by a vessel on navigable waters, even though the injury or damage is done or consummated on land.

15

(a). As the Supreme Court explained, “[t]he 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.” Grubart,

.

“After this congressional modification to gather the odd case into

admiralty,” a series of four Supreme Court cases tinkered with the traditional

locality test to “keep[] a different class of odd cases out.”

(emphasis added). In

the first case, Executive Jet Aviation, Inc. v. City of Cleveland, a plane crashed into

Lake Erie after its jet engines inhaled a flock of seagulls shortly after takeoff from

Burke Lakefront Airport in Cleveland, Ohio.

(1972). Because the

plane crashed into navigable waters, admiralty jurisdiction arguably existed

under the locality test.7 But the Court observed “that ‘a purely mechanical

application of the locality test’ was not always ‘sensible’ or ‘consonant with the

purposes of maritime law,’ as when (for example) the literal and universal

7 We say arguably because the Court did not decide precisely where the tort (as opposed to the crash) occurred for purposes of applying the locality test. See Exec. Jet,

(“In the view we take of the question before us, we need not decide who has the better of this dispute.”).

16 application of the locality rule would require admiralty courts to adjudicate tort

disputes between colliding swimmers.” Grubart,

(citation omitted)

(quoting Exec. Jet,

).

In light of this concern, the Court decided to pull back on the locality test, at

least in the aviation context. The Court noted that, “[u]nlike waterborne vessels,

[aircraft] are not restrained by one‐dimensional geographic and physical

boundaries. For this elementary reason, [the Court] conclude[d] that the mere fact

that the alleged wrong ‘occurs’ or ‘is located’ on or over navigable waters—

whatever that means in an aviation context—is not of itself sufficient to turn an

airplane negligence case into a ‘maritime tort.’” Exec. Jet,

. Rather,

the Executive Jet Court believed “[i]t [was] far more consistent with the history

and purpose of admiralty to require also that the wrong bear a significant

relationship to traditional maritime activity.”

It therefore held “that unless

such a relationship exists, claims arising from airplane accidents are not

cognizable in admiralty in the absence of legislation to the contrary.”

In so

holding, the Court adopted, at least in the aviation context, the position of several

lower courts that “a maritime locality is not sufficient to bring the tort within

17 federal admiralty jurisdiction, but that there must also be a maritime nexus—

some relationship between the tort and traditional maritime activities, involving

navigation or commerce on navigable waters.”

.

Although the Court clearly limited Executive Jet’s holding to the “aviation

context,” that did not stop lower courts from extending its reasoning—

particularly the maritime nexus requirement—to other circumstances, an

extension the Court expressly endorsed in Foremost Insurance Co. v. Richardson,

(1982). In that case, two pleasure boats collided on the Amite River in

Louisiana.

. Although the Court “conceded that pleasure boats

themselves had little to do with the maritime commerce lying at the heart of the

admiralty court’s basic work,” it “nonetheless found the necessary relationship,”

i.e., maritime nexus, “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.’” Grubart,

(alterations in original) (quoting Foremost,

). The Court

elaborated that “if these two boats collided at the mouth of the St. Lawrence

Seaway, there would be a substantial effect on maritime commerce, without

18 regard to whether either boat was actively, or had been previously, engaged in

commercial activity.” Foremost,

.8

The Court thus held that Executive Jet’s maritime nexus requirement could

be satisfied if the incident in question has a potentially disruptive effect on

maritime commerce, which would be the case for the recreational‐vessel collision

in Foremost. See Grubart,

(explaining Foremost). This conclusion was

based at least in part on the Court’s view that, “[a]lthough the primary focus of

admiralty jurisdiction is unquestionably the protection of maritime

commerce, . . . . [t]he federal interest in protecting maritime commerce . . . can be

fully vindicated only if all operators of vessels on navigable waters are subject to

uniform rules of conduct.” Foremost, 457 U.S. at 674–75. In a footnote, however,

the Court remarked that “[n]ot every accident in navigable waters that might

disrupt maritime commerce will support federal admiralty jurisdiction.”

at 675

n.5. Rather, it is only “when this kind of potential hazard to maritime commerce

arises out of activity that bears a substantial relationship to traditional maritime

8 As one district court later pointed out, “[s]ince the mouth of the St. Lawrence Seaway is miles wide and the colliding pleasure boats were small, [Foremost’s] example of a potential disruptive effect upon maritime commerce takes the concept about as far as it can go.” Roane v. Greenwich Swim Comm.,

(S.D.N.Y. 2004).

19 activity, as [did] the navigation of the boats in [Foremost], [that] admiralty

jurisdiction is appropriate.”

Eight years later, this footnote would morph into the modern multi‐part

test for admiralty tort jurisdiction. In Sisson v. Ruby, the Court was called upon to

decide whether admiralty jurisdiction extends to tort claims arising after a

defective washer/dryer caught fire on a pleasure boat docked at a marina, with

the resulting fire burning the pleasure boat, other boats docked nearby, and the

marina itself.

. In concluding that admiralty jurisdiction covered the

claims related to this fire, the Court separated Foremost’s footnote discussing the

maritime nexus requirement into two components. See Grubart,

.

Under the Sisson test, after determining that the location test is satisfied, courts

must first “determine the potential impact of a given type of incident by

examining its general character” and whether this type of incident is “likely to

disrupt [maritime] commercial activity.” Sisson,

. Second, “the

party seeking to invoke maritime jurisdiction must show a substantial

relationship between the activity giving rise to the incident and traditional

maritime activity.”

.

20 The Court explained that the first part of the connection “inquiry does not

turn on the actual effects on maritime commerce” of a particular incident;

“[r]ather, a court must assess the general features of the type of incident involved

to determine whether such an incident is likely to disrupt commercial activity.”

. For example, the Court described the general features of the incident in

Sisson as “a fire on a vessel docked at a marina on navigable waters,” in Executive

Jet as “an aircraft sinking in the water,” and in Foremost as “a collision between

boats on navigable waters.” Sisson,

.

The Court further explained that, under the second part of the connection

inquiry, “the relevant ‘activity’ is defined not by the particular circumstances of

the incident, but by the general conduct from which the incident arose.”

.

For example, in Sisson, “the relevant activity was the storage and maintenance of

a vessel at a marina on navigable waters,” in Executive Jet, “the relevant activity

was not a plane sinking in Lake Erie, but air travel generally,” and in Foremost, the

“relevant activity [was] navigation of vessels generally.” Sisson, 497 U.S. at 364–

65. Under this second prong, the Sisson Court reiterated Foremost’s lesson that

“[t]he fundamental interest giving rise to maritime jurisdiction is the protection of

21 maritime commerce and . . . that interest cannot be fully vindicated unless all

operators of vessels on navigable waters are subject to uniform rules of conduct.”

(citations and quotation marks omitted). Moreover, “[t]he need for

uniform rules of maritime conduct and liability is not limited to navigation, but

extends at least to any other activities traditionally undertaken by vessels,

commercial or noncommercial.”

The Sisson Court “conclude[d] that, just as

navigation, storing and maintaining a vessel at a marina on a navigable waterway

is substantially related to traditional maritime activity.”

Finally, in Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., the Court

considered whether admiralty jurisdiction extended to claims related to flooding

in the downtown Chicago Loop after operators of a crane sitting on a barge in the

Chicago River drove piles into the riverbed above an underwater tunnel,

allegedly weakening the tunnel and causing the flooding.

. Before

upholding admiralty jurisdiction on such facts, the Court affirmed and further

developed the Sisson test, explaining that, under “Sisson, . . . a party seeking to

invoke federal admiralty jurisdiction . . . over a tort claim must satisfy conditions

both of location and of connection with maritime activity.”

. First, “[a]

22 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.” Id.9 Second, in applying the connection test, the court examines

two issues: (1) the court “must assess the general features of the type of incident

involved to determine whether the incident has a potentially disruptive impact on

maritime commerce”; and (2) the “court must determine whether the general

character of the activity giving rise to the incident shows a substantial

relationship to traditional maritime activity.”

(citations and quotation

marks omitted).

The Grubart Court further explained that the first connection prong

“turns . . . on a description of the incident at an intermediate level of possible

generality,”

, focusing on “the ‘general features’ of the incident,”

. The Court elaborated that, “[a]lthough there is inevitably some play in the

joints in selecting the right level of generality when applying the Sisson test, the

9 The location part of the modern test effectively incorporates the traditional locality rule, which does not turn on the involvement of a vessel, see The Plymouth,

, plus the Extension of Admiralty Jurisdiction Act, which does, see

(a).

23 inevitable imprecision is not an excuse for whimsy.”

.10 In Grubart, the

Court concluded, “the ‘general features’ of the incident at issue here may be

described as damage by a vessel in navigable water to an underwater structure.”

.

In contrast, the second connection prong turns on “whether the general

character of the activity giving rise to the incident shows a substantial

relationship to traditional maritime activity,” and courts should “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.”

at 539–

40. “Navigation of boats in navigable waters clearly falls within the substantial

relationship, Foremost; storing them at a marina on navigable waters is close

enough, Sisson; whereas in flying an airplane over the water, Executive Jet, as in

swimming, the relationship is too attenuated.”

(citations omitted). In

Grubart, “the ‘activity giving rise to the incident’ . . . [was] characterized as repair

or maintenance work on a navigable waterway performed from a vessel,” which,

Whimsy, like beauty, is often in the eye of the beholder, but the Court provided no 10

additional guidance as to how lower courts should select the right level of generality.

24 the Court concluded, also fell within the substantial relationship.

(quoting

Sisson,

).

In affirming the complicated Sisson test, however, the Grubart Court also

cautioned that Sisson should be viewed as “a test to weed out torts without a

maritime connection,” not “an arbitrary exercise for eliminating jurisdiction over

even vessel‐related torts connected to traditional maritime commerce.”

at 542

n.4. In other words, “[a]lthough the [modern test] tempers the locality test with

the added requirements looking to potential harm and traditional activity, it

reflects customary practice in seeing jurisdiction as the norm when the tort

originates with a vessel in navigable waters, and in treating departure from the

locality principle as the exception.” Id. at 547.

To drive this point home, the Court devoted considerable attention to the

criticism that “[i]f the activity at issue [in Grubart] [was] considered maritime

related, . . . then virtually ‘every activity involving a vessel on navigable waters’

would be ‘a traditional maritime activity sufficient to invoke maritime

jurisdiction.’” Id. at 542 (quoting Grubart Br. 6). The Court responded bluntly that

“this is not fatal criticism,” because the Court “ha[d] not proposed any radical

25 alteration of the traditional criteria for invoking admiralty jurisdiction in tort

cases.” Id. Rather, the Court explained that it “ha[d] 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.” Id. It further remarked:

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 fact that the pleasure boat activity took place near shore, where States have a strong interest in applying their own tort law, or was not on all fours with the maritime shipping and commerce that has traditionally made up the business of most maritime courts. Although we agree with petitioners that these cases do not say that every tort involving a vessel on navigable waters falls within the scope of admiralty jurisdiction no matter what, they do show that ordinarily that will be so.

Id. at 543 (emphasis added) (citations omitted).

We recently applied the Executive Jet line of cases in Tandon, which involved

a brawl on a marina dock, with some of the brawlers falling into the surrounding

navigable waters—the type of “perverse and casuistic borderline situation[]” that

could have satisfied the locality test and that the modern test was designed to

exclude. Tandon,

(quoting Exec. Jet,

). Applying the

Grubart test, we held that admiralty jurisdiction did not reach the claims relating

26 to this brawl “because this type of incident does not have a potentially disruptive

effect on maritime commerce.” Id. at 240.

After summarizing the Executive Jet line of cases, we restated the Grubart

test as follows:

First, we ask whether the alleged tort meets the location test: that is, whether it occurred on navigable water or was caused by a vessel on navigable water. Second, we ask whether the alleged tort meets both subparts of the connection test: that is, whether the general type of incident involved has a potentially disruptive effect on maritime commerce, and whether the general character of the activity giving rise to the incident bears a substantial relationship to traditional maritime activity. Only if the location test and both subparts of the connection test are met will admiralty tort jurisdiction be proper under

(1).

(citation omitted). Later in that opinion, we explained that “[t]he first

part of the connection test looks to the nature of the incident that immediately

caused the underlying injury; the second part, by contrast, looks to the nature of

the broader activity giving rise to that incident.”

at 250–51.

Applying the first part of the connection test, we noted that “[t]he overall

purpose of the exercise is to determine ‘whether the incident could be seen within

a class of incidents that pose[] more than a fanciful risk to commercial shipping.’”

at 249 (quoting Grubart,

). “We conclude[d] that the incident at

27 issue in [that] case [was] best described as a physical altercation among

recreational visitors on and around a permanent dock surrounded by navigable

water.”

After so defining the incident, “[w]e conclude[d] that this type of incident

does not realistically pose a threat to maritime commerce,” for four reasons: (1) “a

fistfight on and around a dock cannot immediately disrupt navigation”; (2) “a

fistfight on a dock cannot immediately damage nearby commercial vessels”; (3)

“the class of incidents we consider[ed] [t]here include[d] only fights on

permanent docks” that “d[id] not pose the same risks to maritime commerce as a

fistfight occurring on a vessel on navigable water”; and (4) “the class of incidents

we consider[ed] [t]here involve[d] only physical altercations among recreational

visitors, not persons engaged in maritime employment.”

at 249–50. Because we

concluded that the incident failed to satisfy the first part of the Grubart connection

inquiry, we ended our analysis there.

at 253 n.10.

Responding to the argument that “the struggling bodies could themselves

pose a navigational hazard,” id. at 251, we noted that, “[a]t worst, an incident of

this sort might temporarily prevent commercial vessels from mooring at the

28 permanent dock around which the fight occurred. But the potential impact of

such a temporary disruption is simply too meager to support jurisdiction,” id. at

252 (citation omitted). And in response to the argument that “a fight on a dock

surrounded by navigable water may require emergency responders to come to

the dock by boat and leave by boat, potentially snarling naval traffic in nearby

waters[,] [w]e recognize[d] that other courts have found the potentially disruptive

impact of a maritime emergency response enough to satisfy the first part of the

connection test in some cases,” but “[t]hose cases . . . generally dealt with

incidents occurring either aboard a vessel or else in open water.” Id. We further

acknowledged that “[w]here such an incident takes place on a vessel or in open

water far from the shore, the potential danger to commercial shipping posed by a

maritime emergency response may be more significant.” Id.

B.

The alleged tort here involves a vessel on navigable waters—factors the

Supreme Court has reminded us will ordinarily place a case within the bounds of

admiralty jurisdiction. See Grubart,

. Nonetheless, the district court

applied the Grubart test and concluded that admiralty jurisdiction was lacking,

29 emphasizing the recreational nature of the vessel and its passengers as well as the

location of the incident in shallow waters. We disagree that these factors remove

the case from admiralty jurisdiction.

1.

Working through the Grubart test, the district court began by noting that

“the parties agree the location test has been met since the alleged tort occurred on

a navigable body of water, Oneida Lake.” Ficarra,

.

Turning to the first step of the connection test—whether the general type of

incident involved has a potentially disruptive effect on maritime commerce—the

district court set forth a general description of the incident, which, as noted, must

be described at an “intermediate level of possible generality.” Grubart,

. The district court found “that the incident is best described as an injury to a

recreational passenger who jumped from a recreational vessel in a shallow

recreational bay of navigable waters.” Ficarra,

.

This description is hardly a fit of “whimsy,” Grubart,

, but we

explained in Tandon that the description of the incident at an intermediate level of

possible generality should be “neither too general to distinguish different cases

30 nor too specific to the unique facts of the particular case,”

. An

overly particularized description will invite future litigation over even the

smallest change to the fact pattern, even if that change has little bearing on

whether federal courts should or should not exercise admiralty jurisdiction. The

description should therefore be “general enough to capture the possible effects of

similar incidents on maritime commerce.”

. In this regard, we

respectfully believe the district court’s description is unnecessarily specific.

First, the Supreme Court has consistently stated that it does not matter for

purposes of admiralty tort jurisdiction whether the vessel involved was used for

commercial or recreational purposes. See Foremost, 457 U.S. at 674–75; see also

Yamaha Motor Corp., U.S.A. v. Calhoun,

(1996) (holding admiralty

jurisdiction extends to jet ski accident). This is so because the federal “interest can

be fully vindicated only if all operators of vessels on navigable waters are subject

to uniform rules of conduct.” Foremost,

; see also 1 Thomas J.

Schoenbaum, Admiralty and Maritime Law § 3‐3 at 130–31 (5th ed. 2011) (“Thus, the

current test extends admiralty jurisdiction to pleasure craft, but only if they are

31 operating on a waterway with commercial navigability.”). The district court’s

emphasis on the recreational nature of Germain’s vessel is therefore misplaced.

Second, the Supreme Court has never indicated that it matters whether the

navigable waters at issue were shallow or deep. That the Court has not discussed

the depth of navigable waters is unsurprising because “[t]he basic test of

navigability for purposes of admiralty jurisdiction is the formula of The Daniel

Ball, [

(1870),]” and that formula requires, among other things, “proof

of present or potential commercial shipping.” 1 Schoenbaum, supra, § 3‐3 at 125–27.

“As long as such commercial activity is proved, the particular mode of travel or

type of craft—flatboat, barge, power vessel, or other method—is unimportant

. . . .” Id. § 3‐3 at 127. If navigability is satisfied, then, it should matter very little

for purposes of the first connection prong whether the navigable waters were

shallow or deep.

We noted in Tandon that, “in considering the type of incident involved, the

location of the incident may be relevant,”752 F.3d at 251, but there we focused on

the distance from shore or, more accurately, the distance from the nearest dock or

marina, rather than the depth of the waters. Specifically, in assessing the potential

32 effects on maritime commerce, we noted that “[a]n emergency response to an

incident on and around a floating dock is . . . much less likely to ensnarl maritime

traffic than an emergency response to an incident on a vessel or an incident in

open water.” Id. at 252 (citation and quotation marks omitted). The incident here,

unlike the incident on and around a dock in Tandon, occurred on a vessel and in

open water.

Third, the district court also relied on Tandon’s observation that “the roles

of the persons involved . . . can be relevant to the potential effect on maritime

commerce.” Ficarra,

(quoting Tandon,

). But, as

noted, the focus under the first prong of the modern test is on capturing possible

effects of similar incidents on maritime commerce. Where similar incidents

involving different types of persons produce similar effects that have a potentially

disruptive effective on maritime commerce, the type of person involved should be

omitted from the incident’s description. As discussed in greater detail below, the

potential effects on maritime commerce of an injury to a passenger who jumped

from a vessel on open navigable waters include collisions with commercial

vessels caused by distracted crews and disruption to maritime traffic caused by

33 maritime rescue. These potential effects may be the same whether the injured

passenger was recreational or employed in maritime commerce, and they are also

sufficient to satisfy the test. Of course, the loss of a maritime employee may have

an additional effect on maritime commerce. See Tandon,

(collecting

cases). But, at least here, that additional effect does not change the outcome of the

first connection prong, which would be satisfied regardless of the type of persons

involved.

Accordingly, we think a more appropriate description of the incident,

described at an intermediate level of possible generality and general enough to

capture the possible effects of similar incidents on maritime commerce, is injury

to a passenger who jumped from a vessel on open navigable waters. “This

description accurately captures the nature of the event giving rise to this suit, and

the type of risks that the incident could pose to maritime commerce.”

.

“[L]ook[ing] not to the particular facts of the case before us—i.e., whether

maritime commerce was actually disrupted here—but to whether similar

occurrences are likely to be disruptive,”

we conclude that the incident satisfies

the first connection prong. First, the district court concluded that the incident

34 would not pose more than a fanciful threat to maritime commerce largely because

the location of the incident was in “shallow, recreational bays—waters unsuitable

for commercial shipping. Therefore, even if the crew of the vessel was distracted

by the passenger jumping overboard, there would be no risk of collision with

commercial vessels.” Ficarra,

.11 To begin with, the district

court appears to have assumed that commercial means large, but commercial

vessels could include small or flat‐bottom vessels used for commercial purposes

(e.g., fishing boats or boats taking paying passengers to shallow, hard‐to‐reach

bays for snorkeling, diving, etc.). Cf. Sinclair v. Soniform, Inc.,

(3d

Cir. 1991) (holding that scuba diver’s claims against the crew of the vessel that

transported him to a diving site fell within admiralty jurisdiction).

Moreover, the Supreme Court has taken an expansive view of the possible

commercial effects caused by collisions of even small recreational vessels on

navigable waters, regardless of the precise location of those vessels in relation to

commercial traffic. In Foremost, for example, the Court “supported [its] finding of

If the shallow waters were in fact unsuitable for commercial shipping, we do not see 11

how the navigability component of the location test would be satisfied because, as noted, navigability for admiralty purposes requires “proof of present or potential commercial shipping.” 1 Schoenbaum, supra, § 3‐3 at 127.

35 potential disruption . . . with a description of the likely effects of a collision at the

mouth of the St. Lawrence Seaway, an area heavily traveled by commercial

vessels, even though the place where the collision actually had occurred

apparently was ‘seldom, if ever, used for commercial traffic.’” Sisson,

(citation omitted) (quoting Foremost,

n.2). We similarly

conclude that the crew of a vessel, commercial or recreational, on open navigable

waters could become distracted when a passenger is injured from jumping

overboard and that the distraction could risk collision with a commercial vessel.

See Roane v. Greenwich Swim Comm.,

(S.D.N.Y. 2004)

(“[T]hose on board a boat . . . giving their full attention to the saving of the life of

a swimmer in difficulty may well be distracted from hazards posed by the

approach of other boats unaware of the rescue in progress, or coming at speed in

an effort to assist.”).

Second, the district court rejected Germain’s argument “that this type of

incident may still potentially disrupt maritime commerce because an injured

passenger in navigable waters invites rescue.” Ficarra,

(quotation marks omitted). Although the district court recognized that some

36 courts have accepted this argument, it found that “those cases typically involve

rescue at sea or far from shore where the potential risk of an emergency response

to snarl commercial shipping traffic is more realistic.”

(citing Roane,

; Szollosy v. Hyatt Corp.,

(D. Conn. 2002)).

But the incident on open navigable waters here is more comparable to a

rescue at sea than a rescue at or near a dock. One of the reasons we held in Tandon

that rescue of brawlers on or near a dock was unlikely to ensnarl maritime traffic

was that “[e]mergency responders may have to travel by boat to reach persons

injured near a permanent dock, but they will never have to travel far. And once

the emergency responders arrive at the scene, they can moor their vessel at the

permanent dock, rather than having to focus simultaneously on navigating their

vessel and rescuing the injured.”

. In contrast, rescue of passengers

injured on a vessel on open navigable waters will often come not from shore,

dock, or docked vessels but from other vessels on those same navigable waters.

Here, for example, Ficarra was allegedly rescued by boat and rushed five nautical

miles across Lake Oneida back to Brewerton through a federal shipping lane.

Such maritime rescues on open navigable waters could divert resources that

37 would be called upon in the event of an incident involving a commercial vessel,

require commercial boats themselves to aid in the rescue efforts, or otherwise

disrupt commercial shipping by, for example, using federal shipping lanes to

transport injured passengers to safety. See Craddock v. M/Y The Golden Rule,

(S.D. Fla. 2015); Polly v. Estate of Carlson,

(E.D. Mich. 1994); In re Complaint of Bird,

(D.S.C. 1992); cf.

Foremost,

.

Based on similar reasoning, at least three circuits have relied on the

potentially disruptive effect of a maritime emergency response to sustain

admiralty jurisdiction, even when the activity or vessels at issue were

recreational. See, e.g., In re Mission Bay Jet Sports, LLC,

, 1129–30 (9th

Cir. 2009); Ayers v. United States,

, 827–28 (6th Cir. 2002); Sinclair,

. We distinguished these cases in Tandon on the grounds that they

“generally dealt with incidents occurring either aboard a vessel or else in open

water,” and we further noted that “[w]here such an incident takes place on a

vessel or in open water far from the shore, the potential danger to commercial

38 shipping posed by a maritime emergency response may be more significant.”

. As discussed above, those factors are present here.

We therefore conclude that the general type of incident involved here—

injury to a passenger who jumped from a vessel on open navigable waters—has a

potentially disruptive effect on maritime commerce.

2.

The district court further concluded that even if it went to the next step—

whether the general character of the activity giving rise to the incident shows a

substantial relationship to traditional maritime activity—“admiralty jurisdiction

would still not lie.” Ficarra,

. We respectfully disagree.

Under this second step, the district court properly began by “describ[ing]

the ‘general character’ of the alleged tortfeasor’s activity which gave rise to the

incident.”

(quoting Grubart,

). The district court described

“Germain’s alleged activity which gave rise to the incident . . . as anchoring a

recreational vessel in a shallow recreational bay without adequately warning a

passenger about the risks of diving in.” Id. at 316. It then concluded that this

activity “is not ‘so closely related to activity traditionally subject to admiralty law

39 that the reasons for applying special admiralty rules would apply in the suit at

hand.’” Id. at 316 (quoting Grubart,

).

We believe a more accurate description of the “general character” of

Germain’s activity was the transport and care of passengers on board a vessel on

navigable waters, which more generally captures the many aspects of Germain’s

activity that Ficarra alleges gave rise to his injury (e.g., Germain’s failure to:

operate, captain, anchor, maintain, or control his boat in a manner necessary to

protect the safety of his passengers; instruct passengers on safe boating and

diving; inspect the area where the boat was anchored; and warn passengers about

the conditions where the boat was anchored). And contrary to the district court’s

suggestion, the activity in question need not be “on all fours with the maritime

shipping and commerce that has traditionally made up the business of most

maritime courts,” particularly when the activity in question concerns a vessel on

navigable waters. Grubart,

.

In any event, we conclude that the activities at issue here—whether it is the

more general transport and care of passengers on a vessel on navigable waters or

the more specific anchoring of a vessel without warning of the attendant

40 dangers—are substantially related to traditional maritime activity. Cf. Sinclair,

(“[T]he transport and care of passengers bears a substantial

relationship to traditional maritime activity . . . .”); Kelly v. Smith,

(5th Cir. 1973) (“Admiralty has traditionally been concerned with furnishing

remedies for those injured while traveling navigable waters.”), abrogated on other

grounds as stated in Grubart,

; Bird,

(“The court

finds . . . that the anchoring of a boat in navigable waters is a traditional maritime

activity and that therefore, the second prong is also satisfied.”); 1 Benedict on

Admiralty § 171 at 11‐20 (7th ed. rev. 2015) (“Injuries to passengers on excursion

boats or other vessels for hire arising out of the fault of the vessel operator or

owner are maritime even though there is nothing uniquely maritime about the

type of injury.” (collecting cases)).12

12 In concluding that Germain’s activity lacked a substantial relationship to traditional maritime activity, the district court relied on two cases that have been called into doubt: Delta Country Ventures, Inc. v. Magana,

(9th Cir. 1993), and Foster v. Peddicord,

(4th Cir. 1987). The Ninth Circuit held that “the Delta Country Ventures approach is flatly inconsistent with the Supreme Court’s subsequent decision in Grubart and hence is no longer good law.” Taghadomi v. United States,

(9th Cir. 2005). Although the Fourth Circuit has not overruled Foster, its approach also seems inconsistent with subsequent Supreme Court authority and lower courts in the Fourth Circuit have declined to follow it for that reason. See Bird,

.

41 In sum, we hold that the claims related to the alleged facts here fall within

the scope of admiralty tort jurisdiction. First, the underlying claim meets the

location test as it occurred on navigable waters. Second, the underlying claim

meets both parts of the connection test: (1) The general type of incident—injury to

a passenger who jumped from a vessel on open navigable waters—has a

potentially disruptive effect on maritime commerce; and (2) the general character

of the activity giving rise to the incident—whether described as the transport and

care of passengers on a vessel on navigable waters or the anchoring of a vessel

without warning of the attendant dangers—bears a substantial relationship to

traditional maritime activity.

C.

At oral argument, Germain urged us to adopt a simpler rule and hold that

admiralty jurisdiction extends to all torts originating on a vessel on navigable

waters. We agree that, in general, courts should strive to adopt clear legal rules,

particularly in the context of jurisdiction—fewer things are more wasteful to

litigate than where you can litigate. Cf. Grubart,

(Thomas, J.,

concurring) (“The faults of balancing tests are clearest, and perhaps most

42 destructive, in the area of jurisdiction.”). And in this respect, the modern test for

admiralty tort jurisdiction leaves something to be desired.

Lower courts have exerted considerable effort to make sense of the test,

while lamenting its complexity and lack of clarity. See, e.g., Bird,

n.9 (“Although the test is broad‐based, it is by no means a bright line rule and

therefore fails to serve as the type of clear jurisdictional rule that is so important

when determining subject matter jurisdiction. The nexus test as defined in Sisson

instead will invite confusion and inconsistent application on the part of lower

courts seeking to apply it.” (citation omitted)). As Judge Haight aptly observed:

“Just what sort of conduct satisfies the apparently two‐pronged ‘connection test’

the Court articulated in Grubart remains for consideration by district courts on a

case‐by‐case basis, and I may perhaps be excused for saying that the Court’s chart

does not reveal the precise location of every hazard to jurisdictional navigation.”

Roane,

. The district court’s thoughtful analysis here and our

lengthy explanation of why it was erroneous provide only further evidence that

this is so.

43 But the Supreme Court is well aware of the modern test’s difficulties and

the advantages of a simpler rule, both of which Justice Thomas fully set forth in

his concurring opinion in Grubart. See 513 U.S. at 549–556 (Thomas, J., concurring).

We need not repeat those arguments here, but they do inform our decision not to

adopt the simpler rule that Germain urged us to consider. Most obviously, Justice

Thomas’s concurrence in Grubart advocated a rule similar to the one that Germain

seeks here. See id. at 555 (Thomas, J., concurring) (“When determining whether

maritime jurisdiction exists under § 1333(1), a federal district court should ask if

the tort occurred on a vessel on the navigable waters.”). However persuaded we

might be by Justice Thomas’s concurrence, a majority of the Grubart Court was

not so persuaded, and it is the majority’s opinion that we must follow. We

therefore decline Germain’s invitation to adopt a simpler rule, and we instead

apply the test set forth by the Grubart majority.

Conclusion

For the foregoing reasons, we conclude that Germain’s appeal of the

dismissal of his petition seeking exoneration from or limitation of liability was

proper, and we also conclude that the district court has jurisdiction over that

44 petition. We therefore REVERSE and REMAND for further proceedings

consistent with this opinion.

45