Florio v. Olson

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



          No. 97-1509



                               PAUL F. FLORIO, ET AL.,



                               Plaintiffs - Appellants,



                                          v.



                       ALFRED L. OLSON, A/K/A LEONARD A. OLSON,



                                Defendant - Appellee.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                  [Hon. George A. O'Toole, Jr., U.S. District Judge]
                                                ___________________



                                 ____________________



                                        Before



                               Torruella, Chief Judge,
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                            Coffin, Senior Circuit Judge,
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                              and Boudin, Circuit Judge.
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                                _____________________



               Joseph  G.  Abromovitz,   with  whom  John  G.   Balzer  and
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          Abromovitz & Leahy, P.C. were on brief for appellants.
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               Thomas E. Clinton,  with whom Clinton & Muzyka,  P.C. was on
               _________________             _______________________

          brief for appellee.


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                                  November 25, 1997

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TORRUELLA,  Chief Judge.   Appellant  Paul  Florio sued
                    TORRUELLA,  Chief Judge.
                                ___________



          Alfred Olson in the United States District Court of Massachusetts



          alleging  a  maritime  tort  and  claiming  federal  jurisdiction



          pursuant to 28 U.S.C.  1333.  On January 5, 1993, Florio, working



          as a line handler, helped to bring the USS Kauffman into drydock.



          After  the  ship was  secured, he  was  asked to  fill in  at the



          capstan controls.  A capstan is a large motorized winch which can



          increase  or  decrease tension  on  a  line.   This  capstan  was



          operated remotely by  electrical button controls.   It was  being



          used on January 5, 1993 to facilitate the movement of the caisson



          door, the  device which closes  and seals the  drydock.   At some



          point, when  tension was put on the line running from the capstan



          to the caisson,  it snapped and seriously injured Florio.   It is



          undisputed that the caisson door, the capstan and Florio were all



          either connected to land or on land at the time of the accident.



                    Florio's claims were based  on allegations that, first,



          an  inspection of  the lines  involved in  the docking  procedure



          would have revealed that  the line at issue was in a deteriorated



          condition inappropriate  for  use, and  second,  that  inadequate



          precautions were  in  place  to  prevent injury  to  the  capstan



          operator  from a  parted  line.   The  defendant,  Olson, was  an



          independent dockmaster hired by  Florio's employer, General  Ship



          Corporation, to  supervise the docking procedures.  After a bench



          trial, the court  ruled for defendant  and this appeal  followed.



          We conclude  that under  Jerome B. Grubart,  Inc. v.  Great Lakes
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          Dredge & Dock Co., 513 U.S. 527 (1995), the district court lacked
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subject  matter jurisdiction  and thus  vacate  the judgment  and



          dismiss the appeal.



                    Although  the district court  found that it  had proper



          jurisdiction  over this  claim  by  virtue  of  general  maritime



          jurisdiction under 28 U.S.C.    1333(1), a reviewing court has an



          obligation   to  inquire  sua  sponte  into  the  subject  matter
                                    ___  ______



          jurisdiction of  its cases, see  White v. Gittens, 121  F.3d 803,
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          806  (1st  Cir.  1997),  and   to  proceed  no  further  if  such



          jurisdiction  is lacking.   See  Fed. R.  Civ. P.  12(h)(3) (West
                                      ___



          1997) ("[w]henever  it shall appear  . .  . that the  court lacks



          jurisdiction  of the subject matter, the  court shall dismiss the



          action").  



                    In  Grubart,  the  Supreme  Court  elaborated  upon the
                        _______



          jurisdictional  requirements of 28 U.S.C.   1333(1), articulating



          a clear two-part test.   513 U.S. at 531-34.  A  party wishing to



          assert  maritime jurisdiction over  a tort must  satisfy both the



          "location" and "connection"  requirements of the test.   In order



          to satisfy the  "location" or "situs"  requirement, a party  must



          show either that  the injury occurred on navigable  water or that



          the injury  was caused by  a vessel on  navigable water.   Id. at
                                       ______                        ___



          534.    In   order  to  satisfy   the  "connection"  or   "nexus"



          requirement,  the  party  must  show that  the  type  of incident



          involved has a potentially disruptive impact on maritime commerce



          and that the  "general character" of the activity  giving rise to



          the  incident  shows a  substantial  relationship  to traditional



          maritime  activity.   See  id.;  Evergreen  Marine Corp.  v.  Six
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Consignments of Frozen Scallops, 4 F.3d 90, 93 (1st Cir. 1993).
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                    The  district court  found  jurisdiction  based on  the



          "connection" prong  of the maritime jurisdiction  test, reasoning



          that "[a]lthough  both Florio  and Olson  were 'land-based,'  the



          accident  occurred  in  the  course  of  a  traditional  maritime



          activity and was of  the kind that  has the potential to  disrupt



          maritime commerce."    While  the  district  court  appropriately



          consulted the second prong of the test, it failed to consider the



          first prong.  Under Grubart, maritime jurisdiction is found  only
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          where  the location  and the  connection prongs  are met;  one by
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          itself  will  not  suffice.    Therefore,  to  determine  whether



          maritime  jurisdiction is  appropriate  in  this  case,  we  must



          examine  whether  the  injury suffered  by  Florio  satisfies the



          location requirement.



                    Florio was injured while  he was working on  a drydock.



          It  is well-established  that permanent  drydocks are  considered



          "land" for  the purposes  of 28 U.S.C.    1333(1).   See  Victory
                                                               ___  _______



          Carriers,  Inc.  v. Law,  404  U.S.  202,  212 (1971);  Ellis  v.
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          Riverport  Enterprises, Inc.,  957 F.  Supp. 105,  107 (E.D.  Ky.
          ____________________________



          1997) (analyzing  numerous cases that  treat piers  and docks  as



          extensions  of  land   for  the  purpose  of   applying  maritime



          jurisdiction).    Therefore,  Florio's injury  did  not  occur on



          navigable water.



                    Florio's  injury,  then,  must have  been  caused  by a



          "vessel  on navigable water"  in order to  satisfy the "location"



          requirement.    However,  the  vessel   in  this  case  was  only


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peripherally involved.  The USS  Kauffman had already been guided



          into the drydock.   The line that snapped was not attached to the



          ship or  supplied by  the  ship.   It ran  from one  part of  the



          drydock to another  part of the drydock, and  was controlled from



          shore.  



                    Furthermore, none  of Florio's  theories of  negligence



          directly implicate the vessel.  Florio's claims stem from Olson's



          alleged use of a weathered line and failure  to warn Florio about



          improperly  located capstan  controls.   These  claims allege  no



          causal connection between the vessel and the accident.



                    In  a  supplemental  memorandum  on   this  issue,  the



          appellants  cite Justice Douglas's  dissenting opinion in Victory
                                                                    _______



          Carriers, Inc. v. Law, 404 U.S. 202, 216-217 (1971) (Douglas, J.,
          ______________    ___



          dissenting),  urging  this  Court  to  avoid  "narrow,  grudging,



          hypertechnical definitions" of causation  and location.   Victory
                                                                    _______



          Carriers  applied  the  jurisdictional standard  at  issue  to an
          ________



          accident  on  a drydock  which  occurred  while cargo  was  being



          transferred  for  loading  aboard  a  vessel.1    In  ruling that

                              
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          1   Victory Carriers, unlike  the present case, involved  a claim
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          brought under both the Longshore and Harbor Workers' Compensation

          Act  ("LHWCA"), 33  U.S.C.      903(a)(1),  905(b),  and  general

          maritime  law, 28  U.S.C.     1332, 1333.   At  the time  Victory
                                                                    _______

          Carriers was  heard, claims under  the LHWCA were subject  to the
          ________

          same jurisdictional requirements  as suits brought only  under 28

          U.S.C.    1333(1).  Since Victory Carriers  was decided, however,
                                    ________________

          Congress  has substantially  amended the  LHWCA.  See  Guilles v.
                                                            ___  _______

          Sea-land Service, Inc., 12 F.3d  381, 384 (2d Cir. 1993) (tracing
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          the amendments  to the  LHWCA).  One  of the  amendments extended

          coverage  under the Act to include  certain contiguous land areas

          (such as  drydocks) which  had traditionally  been excluded  from

          maritime jurisdiction.  A  separate jurisdictional provision  was

          added to the LHWCA to accomplish this extension.  See 33 U.S.C.  
                                                            ___

          903(a).   Therefore, a case  brought under the LHWCA  today would



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maritime jurisdiction did  not apply to the  case, Justice White,



          writing for the majority, stated:



                    In  the  present  case  .  .  .  the  typical

                    elements  of a  maritime cause of  action are

                    particularly attenuated:  [the injured party]

                    was not injured by equipment that was part of

                    the ship's usual  gear or that was  stored on

                    board, the equipment that  injured him was in

                    no way attached to the ship, [the  equipment]

                    was not under the control of the ship  or its

                    crew, and the  accident did not  occur aboard

                    ship  or on the gangplank.  Affirmance of the

                    decision  below  would  raise a  host  of new

                    problems   as  to   the  standards   for  and

                    limitations on the  applicability of maritime

                    law to accidents on land.



          Id. at  213-214.   This reasoning disposes  of the  present case.
          ___



          Jurisdictional  boundaries must  be respected,  even  where those



          boundaries seem  "narrow"  or  "hypertechnical,"  lest  confusion



          result  for litigants  trying to determine  the proper  forum for



          their claims.  



                    The  "location" requirement  for maritime  jurisdiction



          has not been  met in this case  because no vessel can be  said to



          have  caused Florio's injuries.   We  therefore need  not address



          whether the "connection"  requirement has been satisfied,  nor do



          we reach the merits of this case.



                    For  the reason  stated  herein,  the  opinion  of  the



          district court is vacated and this case is dismissed.
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          encounter a  less stringent "location"  test than a  case brought

          under  the  general maritime  law  as  codified  at 28  U.S.C.   

          1333(1).  In  this narrow sense, the opinion  has been superseded

          by  statutory reform.   However, Victory Carriers  represents the
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          Supreme Court's application of the  jurisdictional standard which

          persists under general maritime law and is at issue in this case.

          We note that  Florio qualified for benefits under  the LHWCA, but

          that those claims are not before this Court.



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