In RE: Aramark Sports and Entertainment Services
Filing
182
OPINION AND ORDER DISMISSING CASE for lack of Subject-Matter Jurisdiction - Case Closed. Signed by Magistrate Judge David Nuffer on 4/11/2011. (las)
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IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
In the Matter of the Complaint of
ARAMARK SPORTS AND
ENTERTAINMENT SERVICES, LLC,
as owner, or owner pro hac vice, of the 75foot Twin Anchors Excursion Houseboat
"T-5" for Exoneration from or Limitation of
Liability
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IN ADMIRALTY
OPINION AND ORDER
GRANTING MOTION TO
DISMISS FOR LACK OF
SUBJECT-MATTER JURISDICTION
Case No. 2-08-cv-976
District Judge Ted Stewart
Magistrate Judge David Nuffer
Claimant and Third-Party Plaintiff Twin Anchors Marine Ltd. (“Twin Anchors”) moved
to dismiss this action on the grounds of lack of subject-matter jurisdiction under Federal Rule of
Civil Procedure 12(b)(1). Docket No. 126, filed December 22, 2010. Third-Party Defendant
Westerbeke Corporation (“Westerbeke”) has joined in the motion (Docket No. 155, filed
February 7, 2011), which joinder is not opposed. The motion is opposed by Plaintiff Aramark
Sports and Entertainment Services, LLC (“Aramark”). Docket No. 135, filed January 19, 2011.
The complaint in this action, brought under the Limitation of Liability Act, 46 U.S.C. § 30501, et
seq. (“the Limitation Act”), invokes the Court's admiralty and maritime subject-matter
jurisdiction under Rule 9(h) of the Federal Rules of Civil Procedure. This motion involves an
issue of law that is submitted to the magistrate judge by the parties’ consent. Docket no. 167,
filed February 11, 2011. The motion to dismiss was heard March 9, 2011. Present at the hearing
were Julianne Blanch and David Loh for Aramark, Jeffery Williams and Matthew Vafidis for
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Twin Anchors, Phillip Ferguson for Third-Party Defendant Centek Industries, Inc., Jeff
Eisenberg for Claimants (Howeth), Dennis Conroy for Westerbeke, and Greg Sanders and
Patrick Burt for Third-Party Defendant MTI Industries.
For the reasons set forth herein, the magistrate judge finds that this Court lacks subjectmatter jurisdiction over this action. The motion to dismiss is therefore granted.
Aramark has alleged four grounds for jurisdiction, which are addressed in turn:
First, the Admiralty Extension Act, 46 U.S.C. § 30101, does not confer an additional
basis in a Limitation Act proceeding for admiralty subject-matter jurisdiction. The Admiralty
Extension Act does not create a new basis for jurisdiction other than to extend the reach of the
Act to permit claimants who suffered injury to land-based improvements.
Second, the Limitation Act does not, by itself, provide an independent basis for admiralty
subject-matter jurisdiction that is separate and apart from the traditional tests for maritime
jurisdiction. The courts that have addressed this issue are fairly uniform on this point. See, e.g,
Seven Resorts v. Cantlen, 57 F.3d 771, 773 (9th Cir. 1995). The case referred to by Aramark,
Richardson v. Harmon, 222 U.S. 96 (1911), and the cases that have followed Richardson, were
decided prior to the line of decisions beginning with Executive Jet Aviation Inc. v. City of
Cleveland, 409 U.S. 249 (1972).
Executive Jet, and the cases after it require a “nexus” between the alleged wrong and a
traditional maritime activity for jurisdiction to be found. The historic field of admiralty law and
jurisdiction was delimited in Executive Jet by the nexus requirement. As the world has become
more congested and more complex there is now more activity at the margins of our navigable
waters. This is similar to the issues for cities and suburbs which have deer and cougars coming
down from the mountains because of urban expansion. For example, the factual circumstance in
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Executive Jet (an airplane crashing into navigable waters) would never have been considered in
an admiralty court before 1900. The nexus test ensures that admiralty law should apply in
traditional maritime activity and no further.
Third, Aramark’s claim for breach of contract jurisdiction is inconsistent with the
Limitation Act's requirement of a lack of privity. The Act provides that claims subject to
limitation are those arising from any loss, damage or injury incurred “without the privity or
knowledge of the owner.” 46 U.S.C. § 30505(b). The Limitation Act does not apply in cases in
which the ship owner is in privity with the injured party.
Fourth, Aramark claims there is maritime tort jurisdiction. In order to invoke federal
admiralty jurisdiction over a tort claim, a party must satisfy conditions of location and
connection. In applying the location test, a court must determine “whether the tort occurred on
navigable water or whether injury suffered on land was caused by a vessel on navigable water.”
Aramark Leisure Services v. Kendrick, 523 F.3d 1169, 1174 (10th Cir. 2008) (quoting Jerome B.
Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534 (1995)). The connection
test has two parts. First, 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.” Id. (quoting Grubart, 513 U.S. at 534). Second, the court “must determine whether
the general character of the activity giving rise to the incident shows a substantial relationship to
traditional maritime activity.” Id. (quoting Grubart, 513 U.S. at 534). The parties agree that the
locality test is satisfied, and that there is a substantial relationship between the activity giving rise
to the incident and a traditional maritime activity. The issue in this case concerns the
requirement of the maritime tort analysis that the incident have a “potentially disruptive impact
on maritime commerce.” Aramark Leisure Services, 523 F.3d at 1174 (quoting Grubart, 513
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U.S. at 534. This is a question of law, not – as some parties suggested – a matter of discretion.
The parties agree that the court must formulate a description of the incident “at an intermediate
level of possible generality.” Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513
U.S. 527, 538 (1995).
With this principle in mind, the formulations from other cases are instructive:
In Sisson v. Ruby, 497 U.S. 358 (1990), the Supreme Court defined the incident as “a fire
on a vessel docked at a marina on navigable waters.” Id. at 363. Important in the Sisson case,
even though not articulated in that same sentence, were the facts that the marina (where the boat
was docked) burned and nearby boats were affected. The Supreme Court has included several
elements in its formulation: location; effect on other vessels or structures that are used in
maritime commerce; movement (lack of movement there -- the subject vessel was docked); and,
as was specifically referred to in Sisson, the proximity of other vessels.
The parties argue H20 Houseboat Vacations Inc. v. Hernandez, 103 F.3d 914 (9th Cir.
1996). It is a little seductive to suggest that the similar facts in H20 should control the outcome
of this case. Cases are not decided on factual similarities. The facts may illustrate the
application of legal principles which decide cases.
In H20 Houseboat Vacations, the Court of Appeals’ formulation of the incident was: “the
emission of carbon monoxide fumes inside a contained space within a houseboat tied to the
shore.” Id. at 916. Again, the formulation refers to the lack of movement: the houseboat is “tied
to shore.” The identification of the houseboat is important: a houseboat may be described as a
water-based structure with a land-based, or similar, purpose. The Court of Appeals appears to
have chosen the word “houseboat” deliberately. The reference to “inside a contained space” has
to do with the scope of the incident, an issue in H20 Houseboat Vacations.
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The magistrate judge takes note of other examples of formulations in cases referred to in
the parties’ papers. In Just v. Chambers, 312 U.S. 383, 384 (1941) the court described “carbon
monoxide gas poisoning alleged to have occurred on board the vessel . . . . cruising at the time
within the territorial limits of the State of Florida.” The vessel was moving in a navigable path.
In Lewis v. Sea Ray Boats, Inc., 65 P.3d 245, 251(Nev. 2003) “a single pleasure boat [was]
moored at an isolated location at night.” Night is not a traditional time for travel, the boat was at
an isolated location, and the boat was moored -- the equivalent of being anchored. In In re:
Skipperliner Industries Inc., No. 00-C-0730-C, 2002 WL 32348827, at *8 (W.D.Wis. Jan. 31,
2002) (unpublished) the description was “carbon monoxide poisoning on a vessel anchored to an
island in a navigable river.” The vessel was anchored. The poisoning occurred on the vessel, but
the vessel was in a navigable river and the court in Skipperliner specifically found there to be a
potential to impede traffic because of the craft’s location.
Finally, turning to the 10th Circuit case: In Aramark Leisure Services v. Kendrick, 523
F.3d 1169 (10th Cir. 2008), the incident was described as “recreational boating” on “the
navigable waters of Lake Powell,” navigable waters, “when they collided with a canyon wall or
cliff;” (id. at 1174): movement, impact, and location in the flow of travel were all described. In
Judge Campbell's case, In Re: Aramark Sports and Entertainment Services, LLC, No: 2-09-CV637-TC, 2010 WL 770065 (D.Utah, Mar. 5, 2010) (unpublished), the formulation of the incident
was: “a boat sinking while carrying passengers who need to be rescued.” Id. at *1. Similarly,
this formulation involves a vessel in the way of travel and underway, and the potential of
interference as a result of rescue activities.
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Therefore, the magistrate judge concludes that any formulation of the incident in this case
needs to include the location. It needs to make reference to movement – whether the vessel is in
the way of travel or traffic – and the proximity of the subject vessel to other vessels.
Aramark’s proposed formulation is: “carbon monoxide poisonings aboard vessels
operating in the navigable waters of the United States.” Aramark’s Memorandum of Law in
Opposition to Twin Anchors’ Motion to Dismiss Aramark’s Limitation Action for Lack of
Admiralty and Maritime Jurisdiction at 5, docket no. 140, filed January 20, 2011. This statement
is too broad. This incident did not involve a class of “vessels”: this is a houseboat. There was
only one houseboat involved. The houseboat was not in the flow of traffic or in an area of
transit. The poisoning occurred inside the vessel. The genesis of the carbon monoxide aside, the
people were inside the vessel at the time of the incident. There is a dispute in the report about
whether there was a window open or not, but clearly the incident was inside the houseboat. The
Aramark formulation does not describe the incident “at an intermediate level of possible
generality.” Jerome B. Grubart, Inc, 513 U.S. at 538.The magistrate judge prefers Westerbeke’s
formulation of the incident: “Carbon monoxide exposure on a single vessel anchored alone in an
isolated cove on a navigable lake.” Westerbeke Corp.’s Memorandum in Support of Its Motion
for Joinder in Twin Anchors Marine, Ltd.’s Motion to Dismiss for Lack of Subject Matter
Jurisdiction at 5, docket no. 156, filed February 7, 2011. Accordingly, the magistrate judge’s
formulation is: “Carbon monoxide exposure inside a single houseboat anchored alone in an
isolated cove on a navigable lake.” This formulation has the elements of proximity to other
boats; the stationary nature of the vessel; its location outside the flow of usual navigable travel;
and the type of event.
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Under the proper formulation, there is no admiralty subject-matter jurisdiction in this
case because this incident does not have a “potentially disruptive impact on maritime
commerce.” The motion to dismiss (Docket No. 126) is granted. This case is dismissed by this
Order.
SO ORDERED.
Dated this 11th day of April, 2011.
___________________________________
David Nuffer
United States Magistrate Judge
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