Foremost Ins. Company v. Richardson

PETITIONER: Foremost Ins. Company
RESPONDENT: Richardson
LOCATION: Turner Turnpike

DOCKET NO.: 80-2134
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 457 US 668 (1982)
ARGUED: Jan 12, 1982
DECIDED: Jun 23, 1982

Arthur H. Andrews - On behalf of Petitioners
Dorsey C. Martin, III - on behalf of Respondents

Facts of the case


Media for Foremost Ins. Company v. Richardson

Audio Transcription for Oral Argument - January 12, 1982 in Foremost Ins. Company v. Richardson

Warren E. Burger:

We will hear arguments next in Foremost Insurance Company against Pansy F. Richardson.

Mr. Andrews, I think you may proceed whenever you are ready now.

Arthur H. Andrews:

Mr. Chief Justice, and may it please the Court:

The complaint that we have with the lower court opinion in the Fifth Circuit is that it, that court, abandoned any requirement of the commercial connection to either the location of this maritime, or so-called maritime, collision and the activity complained of.

Since this Court's opinion in Executive Jet v. The City of Cleveland, there has been a lot of debate as to just what the Court meant in much of the dicta in that decision in light of the fact that the decision was limited to aircraft crashes on navigable waters.

I think that there is uniform agreement with the scholars and courts that something beyond the locality alone rule was required or ought to be required, because that locality alone rule does not work so well anymore.

There is two fields of debate as I recognize the issues, as to whether the locality should be abandoned completely and that a maritime nexus alone should apply.

I think that the majority view, certainly the view that I take and I believe the view taken by most scholars, is that locality is still important.

But in addition to locality, there ought to be something else.

That has been formulated I think as the so-called locality plus rule.

The plus that I would add to the occurrence is the plus of some commercial flavor to either the location of the wrong or the activities complained of.

The Fifth Circuit, in its early decisions following Executive Jet; notably, Peytavin which involved a collision of automobiles on a floating pontoon portion entrance way to the ferry, found that there was no maritime jurisdiction in that type of action, but I would suggest to you, kept a commercial flavor to it.

Mr. Andrews, what do you mean by a commercial flavor?

Supposing this were a rented boat.

Arthur H. Andrews:

Rented boats I don't think should really... what are we talking about in the nature of?

Rented boats would certainly... this case, what makes this case I think interesting and what makes it here is that we are talking about commercial pleasure boating in the purest sense, as the district court found.

I'm just wondering about commercial pleasure boating.

If you rent the boats... would that be enough commercial flavor?

Arthur H. Andrews:

I cannot honestly tell the Court that I can draw the line so fine to say that if I was paddling a boat around, rented, on the Potomac River and it sunk because of some defect in it, that that ought to be maritime law.

My reaction is that it should not be.

How would you help us to define... you asked us to adopt the commercial flavor test, and I'm just trying to get from you what is it that would give us enough commercial flavor?

Arthur H. Andrews:

The way I would approach the problem, as pointed out in brief and which I believe is supported by at least Benedict, I would use a twofold sort of test.

When we are in the traditional blue water sea, more than a marine league, away from the shore, I would use essentially a locality alone test, so that the activity complained of would not have to have a very strong relationship to commerce in order to support maritime jurisprudence or the admiralty jurisdiction of a federal court.

As I moved shoreward and got closer to the beach, and as I moved inward, then I would require that the complained of activity have some closer connection to traditional notions of maritime activity or, i.e., commerce.

Now, the Kelly v. Smith case is one that definitely gave us problems in the Fifth Circuit.

Judge Thornberry in our argument there indicated that the panel decided our decision would probably not decide Kelly v. Smith the way it was.

But you will recall that is the case of the deer poachers who were fleeing an island in the Mississippi River.

Certainly, the court had a good deal of fun in writing that case.

One of the things that is important, too, and ought not to be overlooked in Kelly is that there was simply no other cause of action.

All of the state proceedings had prescribed, or the statute had run, in common-law lingo.