Foremost Ins. Company v. Richardson

PETITIONER:Foremost Ins. Company
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


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.

Arthur H. Andrews:

But in Kelly, the remedy, if there was to be a remedy, was to be admiralty.

I view that Kelly v. Smith is more of an extreme example of the lack of a maritime flavor to the activity.

But look at the location.

We’re talking about the Mississippi River, and a very definite hazard can be posed to commercial navigation because of the activity complained of.

We’ve got the Kelly court recognizing that the pilot of the small boat is the pilot that is wounded by the shot from shore, and we have got activity in the Mississippi River.

That is why I think that Kelly ought to be the far parameter–

Really what you are saying, I guess, is that instead of using navigability as the test, you’d use commercial navigability.

Arthur H. Andrews:

–I would.

That is–

Wherever you have got commerce, then… whatever, it’s a pleasure boat or what–

–Then location would be the sole test if it was on water that was used for commerce.

Arthur H. Andrews:

–No, sir.

I think that that would be equally wrong.

I think–

Well, most boats have to come to shore, and they come into a port through some channels.

Arthur H. Andrews:

–That is right.

Which are used by pleasure boats and all other kinds of boats.

You would say even there, that location would not be the sole test.

Arthur H. Andrews:


I would say that the location ought to be examined in light of its importance to commerce, and that the activity complained of ought to also be examined in light of its relationship–

You wouldn’t require some connect… so no pleasure boat would ever by covered by admiralty.

Arthur H. Andrews:

–I wouldn’t go so far as to say that.

If a pleasure boat collided–

Well, give me an example.

Arthur H. Andrews:

–A pleasure boat colliding with a barge on this particular waterway further south, or whatever.

A commercial–

If coming into a harbor you collide with a commercial ship that is maritime, and if you collide with another pleasure boat it is not.

Arthur H. Andrews:

–I cannot say that either, because that is the importance of the harbor.

Certainly, if this accident would have occurred in the Port of New York, or in the City and Port of New Orleans or Baton Rouge, I could not come to this Court or any other court and say that the federal interest, and the admiralty interest is not significantly great enough, and that this activity is so remote from commerce and legitimate admiralty ends that there should be no jurisdiction.

I believe I can say that where we are now, because we are talking about a very insignificant inland waterway that has no commercial purpose and if it is even found… recognized by the Fifth Circuit… if it has any significance to commercial activities, it is very minor.

Mr. Andrews, supposing you took the portion of the intercoastal waterway around the perimeter of Florida, which is primarily used by large numbers of pleasure boats, yachts and things like that.

Admiralty jurisdiction or not when two pleasure boats bump into each other?

Arthur H. Andrews:

Within the intercoastal waterway?

I would say that there would probably be jurisdiction.

So you don’t have to have any commerce associated with the vessels.

So I think you are back to location.

What is your test?

Arthur H. Andrews:

I think that the test is this, and it is not just Mr. Andrews saying it.

I believe that Mr. Benedict helps me, and I am glad to say that.

But, I think that you have to look at the location, and its relationship to commerce.

I’m looking at the location, say, between Palm Beach and Miami down there.

Arthur H. Andrews:

Now let’s look at the activity, too.

And the location is 90 % pleasure boats and two pleasure boats bump into each other.

Arthur H. Andrews:

But the location is also within… well, I was under the impression that we were talking about the intercoastal waterway that I am familiar with that has a great deal of inland barge traffic and a great deal of inland ship traffic.

I think along the Florida one… assume for my example anyway that there is a large amount of pleasure boating in a waterway and maybe an occasional commercial fisherman or something, and two pleasure boats collide.

Arthur H. Andrews:

In that situation, and because we are talking about close to shore, I would say probably no jurisdiction.

There is no need for that jurisdiction.

There is no need for the federal court to entertain it.

There is a state action and a state remedy is available, but that is not what I would turn it on.

It is just simply that the need to regulate, as historically the admiralty has… commerce and shipping… is simply not there.

And it ought not to be a case of… you are opening up not only a type of or class of case to the jurisdiction of a court, but an entire field of law that ought not to be applicable to them.

In Louisiana we have a great deal of small commercial fishermen, small trappers, and under this decision of the Fifth Circuit and where it is going to bother, I would suggest, people in Louisiana, but elsewhere is that if two Piros collide on an inland waterway, that not only gives this certainly trivial incident access to a federal court, which may not be bad, but it gives it access to an entire field of law.

I would suggest to you by the time the court started carving out exceptions to make this thing work, that that’s where the confusion would turn into.

I don’t know what plaintiff would have done if I would have tried to limit my liability.

In your example, the water that you are talking about would be navigable.

It is navigable, those inland waterways, and error to commercial fishing boats.

Arthur H. Andrews:

That is right.

But that is not a good enough connection with commerce?

You’re talking about, Your Honor, the type of boats we are dealing with, so yes, I would say no, it isn’t good enough.

And because we are also talking about the water bodies.

As the Court is aware,–

–What about Justice Stevens’ example of 90 % pleasure boat water and 10 % commercial?

Two pleasure boats collide.

You say no jurisdiction.

Arthur H. Andrews:


The pleasure boat collides with a commercial boat.


Arthur H. Andrews:

I would say so.

And if two commercial ships collide, obviously,–

Arthur H. Andrews:


–On the same water.

Arthur H. Andrews:

That is right, in the same location.

What would happen in the little area between Baton Rouge and Louisiana if two boats with two kids in them, netting for crawfish?

I guess they would be covered, too.

Arthur H. Andrews:

Under the Fifth Circuit’s Kelly v. Smith, that is admiralty.

And that is what I think is wrong with it, Your Honors, and that is why I believe that if you do look at the location, and as it moves inshore, there is just not that need to have admiralty jurisdiction apply, and that is why there ought to be more of a commercial flavor.

I wonder, do I get you that if the particular body of water… for our basic premise, of course, it is navigable… is a commercial highway of some kind, then the fact that there’s a collision of two pleasure boats on the commercial highway, that is admiralty?

Arthur H. Andrews:

I would say that is.

Whereas, as you suggest in this case, the body of water may be navigable but it is not a commercial highway, and therefore, these two pleasure boats, it is not admiralty.

But if two commercial fishermen collided at the very spot that these two collided, it would be admiralty.

Is that right?

Arthur H. Andrews:

I think that is correct.

I would agree with the trial judge–

Wouldn’t that get the courts–

Arthur H. Andrews:

–It is confusing.

The Fifth Circuit suggested that one of the reasons they would not apply the rule is that it would be a difficult test to administer.

Look at the locality alone rule that we’ve got here.

Certainly, if there is a test difficult to administer, it is that.

–Well, if the test were only did it happen on navigable water, federally regulable, if it did, then it’s admiralty.

That would be a much simpler test, wouldn’t it?

Arthur H. Andrews:

There’s no question that it–

Well, didn’t the Fifth Circuit say that the test was navigable or capable of being made navigable, so that it isn’t something that is an automatic proof by simply looking at the location.

Arthur H. Andrews:

–No, sir.

That is true.

The Fifth Circuit did not go on location; it said that a collision between two vessels, regardless of whether they are pleasure, the fact that there is a collision is a traditional maritime activity.

And one couldn’t apply their test without… not knowing either whether the water was navigable or whether it was capable of being made navigable.

Arthur H. Andrews:

I think that that is correct because I believe that the Fifth Circuit was talking about navigability in the same sense that it has historically… streams have historically been considered navigable for commerce clause purposes.

They say it takes 6A, if the waterway is capable of being used in commerce.

That is the sufficient threshold to invoke admiralty jurisdiction.

Arthur H. Andrews:

That is right.

That means it has to be navigable, in fact.

Arthur H. Andrews:

No, not at the time.

Not according to the Fifth Circuit.

It says that if it is navigable or susceptible of being navigable, in a commercial sense.

If it is either commercially navigable or susceptible to commercial–

Well, if the waterway is capable of being used in commerce.

Arthur H. Andrews:

–That is right.

Well, is it or isn’t it capable right now?

That is the question.

Arthur H. Andrews:

This particular stream?


Arthur H. Andrews:

We don’t have–

They remanded it, didn’t they?

Didn’t they remand–

Arthur H. Andrews:


The Fifth Circuit reversed the district court and we had one concurring opinion in part and a dissent in part by Judge Thornberry who would have remanded to determine the navigability, in fact, of this particular stream.

In the record, there is some evidence from the Coast Guard, I believe the Corps of Engineers, as to the nature of the stream at this particular point.

That issue of navigability, in fact, was never tried, nor recognized by the court.

–Do you think the court of appeals held that it was navigable?

Arthur H. Andrews:

It did not hold that.

Arthur H. Andrews:

I think if you will look at that portion of the opinion in the Joint Appendix, I believe the words that the Fifth Circuit was that “we recognize” from the record that this area is not used for commerce or seldom, if ever, used I believe is the word that they used.

So that the issue of navigability in fact has really never been adjudicated.

Judge Thornberry would send it back.

We haven’t asked for that remedy here because we want you to look at the commercial aspects of it, as we did in the district court and as we did in the Fifth Circuit.

I think that that is an important thing to look at.

Mr. Andrews, are you approaching your argument as a matter of constitutional law or statutory law?

Arthur H. Andrews:

I think that we’re probably talking about Article III jurisdiction of the U.S. Constitution, yes.

Certainly, the statute, Section 1333, might be narrower than Article III’s language.

Arthur H. Andrews:

I think that that is correct.

Is that your view?

Arthur H. Andrews:

As far as the… I don’t really know, Your Honor.

I don’t know if I can answer that intelligently for you right now.

Let me ask you another question.

There is a statute, it’s 46 U.S. Code Section 740, which extends admiralty and maritime jurisdiction to all cases of damage or injury caused by a vessel on navigable water.

Arthur H. Andrews:


Doesn’t that appear to include pleasure boats?

Arthur H. Andrews:

I think that it does include pleasure boats.

That Extension of Admiralty Act is a legislative enactment, and I think, too, that the–

Then, is this case governed by that statute?

Arthur H. Andrews:

–No, it is not governed by that statute.

Why not?

Arthur H. Andrews:

As I pointed out in my brief, the Fifth Circuit… and I pointed it out for another purpose, but I think that the case is applicable here… there is a case cited in my brief that is the Sohyde Drilling Company case.

In Louisiana and Texas, we are very familiar with offshore drilling, and we have some very specialized vessels that sometimes are vessels and sometimes are islands.

This particular vessel was an island at the time of this injury in that it was a submersible drilling platform that was drilling on the bottom of the lake.

The action was attempted to be brought under the Admiralty Extension Act.

The Fifth Circuit in that opinion said that there ought to be some commercial traditional nexus of the activity and the complained-of injury in order to support admiralty jurisdiction.


Well, that may not be a correct interpretation of that language in the statute, which certainly on its face would literally include pleasure boats unless pleasure boats are not vessels.

Arthur H. Andrews:

–I think that that boat… I think that pleasure boats would be vessels under the Act.

And if there was some damage to a shore-based plaintiff or to an extension of land that was caused by a vessel, including a pleasure craft, in navigation, then I believe there would be supportive jurisdiction in a federal admiralty court under the Extension of Admiralty Act.

Arthur H. Andrews:

There are other legislative expansions, I would suggest, of the jurisdiction; notably, Death on the High Seas Act, the limitation of liability acts, which are legislative encroachments upon traditionally-defined jurisprudential jurisdictional guidelines.

Well, we’ve never held they’ve gone too far, have we?

Arthur H. Andrews:

I don’t think that I can complain that you’ve gone too far in any event, so far.

And we’ve sustained those statutes, haven’t we?

Arthur H. Andrews:

That is correct.

And said that Congress could define those things for us?

Arthur H. Andrews:

That is right.

And isn’t the statute that Justice O’Connor called to your attention… it goes rather far, doesn’t it?

Arthur H. Andrews:

It does go rather far, but it is… and one of the reasons that I would suggest to the Court that we needed it was because at that time, the Court was primarily looking at locality alone.

And certainly, we had some awkward results when we were applying that law, and the Extension of Admiralty Act eliminated a lot of the injustices that were just inherent in the application of that Act.

I think that it’s time that we do look at a little something else.

We need something.

One of the groups of scholars would indicate that they would have maritime nexus without any need for the location to be important.

I don’t think that this Court ought to go that far.

If we look at the contract cases in the maritime field, we haven’t had a heck of a lot of problems with it because despite the fact that we’re talking about contract, we have been talking about requiring a maritime nexus there which is almost inevitably commercial.

And we simply haven’t had those problems in the contract, maritime contract field that we have in the maritime personal injury when we have applied the locality alone test, but with the advent of all this pleasure boating and pleasure and sport fishing.

So something ought to be done.

I would suggest to you that what I have proposed, and as Professor Benedict points out, I think that’s a workable solution.

I think, too, that that rule would also help in the real puzzling question of aircraft litigation and aircraft collisions at sea.

Because there, too, we are talking about… once we are talking about international flights, for example, from New York to London and a crash in the middle of the Atlantic, we are talking… and we start talking about the traditional role of the maritime services in transporting passengers from one country to another.

Then there, we don’t need that much of a connection to traditional notions of maritime activity, so that you are not doing any injustice or abusing language to try to make something fit in both categories.

I may not understand your argument.

What is your view?

Is there or is there not jurisdiction when two airplanes collide in the middle of the Atlantic?

Arthur H. Andrews:

That debate is much greater than the debate here.

I think, in my view, if we have two airplanes colliding in midair in the middle of the Atlantic, we have got to have jurisdiction someplace.

There may not be remedies available to those passengers.

That type of activity is a… that is transportation is the type of activity which has traditionally been done by oceanliner.

I would say that–

Traditionally, they didn’t fly.

Arthur H. Andrews:

–That’s true.

But I would say, too, that you have a closer maritime connection.

I just didn’t know what you were arguing.

I’m still not sure.

Are you saying there is or is not jurisdiction?

Arthur H. Andrews:

I’m saying that we’ve got… well, let me–

You’re saying it’s a tough question.

Arthur H. Andrews:

–Can I cite my example to… because I didn’t want to get both of them off of the ground.

I wanted them to crash in the ocean.

My example and the rule–

I assume that if they crash in the middle of the Altantic they are eventually going to get down into the water.

Arthur H. Andrews:

–That is right.

But I think that we have… the rule that Benedict would put forth to look at the commercial location and commercial activity and weigh that to determine admiralty jurisdiction would also work in the other field of… closely-related field of cases, or line of cases; notably, Executive Jet–

I’m just trying to figure out your answer.

Your answer is yes, because it is commerce and it’s the location rule.

Arthur H. Andrews:

–My answer is yes.

Do you get that out of Executive Jet Aviation?

Arthur H. Andrews:


I think that you would get that out of–

Your new test.

Arthur H. Andrews:


My test.

And whether or not that’s… well, the courts are so inclined to get it out, too.

I don’t know.

I don’t think I need to reserve any other time for rebuttal, but if there are no other questions I will sit down.

Warren E. Burger:

Mr. Martin?

Dorsey C. Martin, III:

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

It is the respondents’ position herein, Your Honors, that the Fifth Circuit Court of Appeals case is correct in encompassing and saying that the factual situation herein is encompassed within the admiralty jurisdiction of this Court.

Admiralty law has traditionally, I would suggest, been concerned with navigation, navigation rules and collisions which occur on navigable waterways.

The case of Executive Jet, this Court’s case, Aviation v. City of Ohio, tells us that, and Justice Stewart, writing the majority says that the law of admiralty deals with navigation rules.

Dorsey C. Martin, III:

The rules that govern the manner and direction vessels move upon navigable water, and he further states that when a collision occurs, the litigants will look to the law of admiralty with its peculiar expertise in this field to determine the nature of damages and fault and liability.

What case were you referring to?

Dorsey C. Martin, III:

This is the Supreme Court case, Executive Jet Aviation v. City of Ohio, Your Honor.

The same premise, of course, is recognized in lower court opinions.

The St. Hilaire Moye case which is cited in the brief, v. Henderson, Eight Circuit case, together with Kelly v. Smith of the Fifth Circuit, both recognize that admiralty law has traditionally furnished remedies for those injured while traveling navigable waters.

Then we have the problem with the three prior Executive Jet Supreme Court cases of Levinson v. Deupree, Coryell v. Phipps and Just v. Chambers, which seem to me to indicate that the traditional remedies that this Court has furnished for those who are injured while traversing navigable waters is not merely lost because pleasure boats were involved.

What is your definition of a navigable water?

Dorsey C. Martin, III:

Your Honor, I would use the definition, of course, that comes from the Daniel Ball case, that first it has to be navigable, in fact, and that it is navigable in fact when it is susceptible of commerce in its ordinary state, and it is susceptible of commerce when it by itself or along with other streams, forms a continuous highway over which commerce can be adapted.

And the Amite River here, I would submit, meets that definition, because the Amite River, of course, from the evidence and so forth, is navigable in fact.

The Corps of Engineer report, the Department of the Army report as to depth–

It is not navigable from shore to shore.

It is not navigable up close to the shore.

Dorsey C. Martin, III:

–Well, it permits commerce at the point of this collision, certainly, and–

You can’t run the boat through weeds up against the shore.

Dorsey C. Martin, III:

–No, Your Honor, no, sir, but in the middle of–

So it is not navigable, is it?

Dorsey C. Martin, III:

–Not close to the shore.

I am sure that the depth would taper off toward the shore, but–

It is not navigable, is it?

Dorsey C. Martin, III:

–Oh, yes, sir, I would submit that it is navigable, in fact, because it has a depth that–

What about those streams I was asking your opponent about between Baton Rouge and New Orleans?

Those are–

Dorsey C. Martin, III:

–Your example about the crawfish fishermen?


Those are navigable rivers.

Dorsey C. Martin, III:

Some of them, yes, sir, would meet the Daniel Ball navigation–

And the little rowboats, they’re not in commerce, are they?

Dorsey C. Martin, III:

–Well, if the crawfish in your example are sold to an outlet, a seafood outlet, which most of these people make a living that way, then commerce is involved and under my definition–

But I wouldn’t call making 50 a day making a living.

Dorsey C. Martin, III:

–No, sir, if that’s all they were making, but some of those people crawfishing making quite a good living, you know, forty or fifty thousand dollars a year.

The one that goes for crawfish to eat himself, he is on navigable waters, he is controlled by maritime law.

Dorsey C. Martin, III:

That is correct.

There’s something wrong there.

Dorsey C. Martin, III:

Well, I would submit that it would be correct because in your example, that particular fisherman’s vessel has been so defined–

He is not a fisherman; he is out fishing, but that is not his business.

Dorsey C. Martin, III:

–He is a pleasure fisherman, or a person engaged in pleasure fishing for his own good–

Like these people were.

Dorsey C. Martin, III:

–I would submit that he is still in a waterbound vessel, and he still has to face the same hazards in that little Piro, in that little pleasure boat–

Well, if his boat sinks, he can walk to shore.

Is that your idea of navigable water?

Dorsey C. Martin, III:

–It would depend, of course, upon the depth of the river at the time.

That’s what I thought.

But under the definition you want and the Fifth Circuit, if it’s a navigable stream in the middle, it’s navigable for all purposes.

Dorsey C. Martin, III:

Well, I would submit that if it is susceptible to supporting commerce, whether it be in the middle of the stream or on the end of the stream and so forth, yes, under the Supreme Court case, Daniel Ball, it is navigable because… this Amite River, you must understand, it flows, it bottoms out into Lake Maurepas, which also connects to the Pontchartrain, and from the Pontchartrain, this river can give access to commerce, not only within the state of Louisiana, but with other states within the United States and also, international trade.

Do we know anything about the depth of the Amite at the point these boats–

Dorsey C. Martin, III:

Yes, Your Honor.

The record… I think it’s the Corps of Engineers report.

No, it’s the Department of Army report which is in the record at pages 103 to 119, shows the depth of the Amite River near the point of collision to be eight feet, within a range permissible for commercial vessel use.

Now, I don’t know if they measured… I’m sure that would be the deepest point.

–Could the jurisdictional issue possibly be resolved on the depth of the water right under the boats at the time they collided?

The Atlantic Ocean is very shallow right by the shore and so is the Mississippi River with a nine-foot channel in the center.

But the entire river of Mississippi is a navigable stream, isn’t it?

Dorsey C. Martin, III:

Yes, Your Honor.

And I would submit that within the definition that we have of navigability, the Amite River meets that definition here, at the point of the collision and further on down.

I think it is susceptible of commerce, and indeed, we have documentation in the record that shows that it might, in fact, be engaged in commerce because there are certain bridge openings along the river, and it’s part of the record, too, it’s the Department of Transportation report and record 136 through 139 reveals that at the time of the accident, there were numerous openings of bridges for vessels along the Amite River.

Now, it could be a large pleasure boat or it could have been a commercial boat of some sort, but that bridge was open to permit traffic.

And it’s not the type of situation that we have in Adams v. Montana where you have a stream which is dammed on both ends–

Sometimes, you open the bridge for a small boat with a very high mast.

Dorsey C. Martin, III:

–That’s correct, Your Honor, and sometimes you would open it, and I believe the record will reflect, sometimes the bridges will open merely for maintenance purposes.

But they are differentiated in that record, and sometimes they were open for vessels or whatever nature.

Dorsey C. Martin, III:

But the Fifth Circuit I believe had to conclude that this river certainly was navigable under the definition of these courts in order to find admiralty jurisdiction.

And I–

Judge Thornberry would have remanded for the sort of finding that you suggest could be made but wasn’t made… whether it was commercially used.

Is that correct?

Dorsey C. Martin, III:

–Yes, sir, that is how I understand his dissent in that case.

Your Honor, it would be submitted that the proper focus should not be on profit or commerce, but the proper focus should be to equate traditional maritime activities with waterbound vessels.

And if you adopted a test in that order, we would see that we would be working with a simple test.

It would be almost as simple as locality.

If there is a waterbound vessel involved, then there is admiralty jurisdiction.

Because these pleasure boats can cause as much problems to commerce and to the freedom of navigation on these navigable streams if they collide as two commercial vessels.

We recognize that commercial vessels and fishing vessels come in all sizes,… I mean pleasure vessels come in all sizes, and a pleasure boat is not relegated like your large pleasure lots and so forth, to interstate waters, but can traverse international waters.

The test is irrational, in my opinion, if you place it on profit or commerce.

Now, if we adopted, or if you adopted the test which would equate the traditional maritime nexus with waterbound vessels, I think you would be excluding those cases that this Court has expressed it did not want to decide under admiralty law; those cases involving aviation, those cases involving the individual who is injured on the surfboard.

That is not a waterbound vessel.

Swimmers colliding with a submerged object, which has been held admiralty law, and the Peytavin case which was a Fifth Circuit case, where the automobile was rear-ended on one of these floating pontoons as it was getting ready to board a ferry.

That would not… if you do that, if you adopt this case, you would be excluding those unwanted cases, but yet, you would be avoiding the observed distinctions between injured passengers and non-passengers, between profit and non-profit, and this test would protect the uniformity, the federal interest, I would suggest, in uniformity because all these federal rules of the road are made applicable to all boats.

Vessel is defined to include–

Do you think the federal statutes defining the rules of the road and setting other safety measures, these statutes you refer to, are they applicable to this river?

Dorsey C. Martin, III:

–Yes, Your Honor, they certainly were.

In fact,–

So you think that if in a local suit, if there was no admiralty jurisdiction under state law they could still say there was negligence because of failure to abide by some federal rule of the road?

Dorsey C. Martin, III:

–I think the federal rules of the road would determine the standard of care in that particular incident.

And I’m worried about the situation–

So there would be federal law controlling the case in any event.

Dorsey C. Martin, III:

–Yes, sir.

Well, part of the federal law.

The federal rules of the road would apply, but necessarily the remedies and the liability determinations that comes from admiralty law, so to speak.

You can’t talk about rules of the road with admiralty.

Because every time I have had an admiralty case and I say try it like two automobiles, the admiralty lawyers look at me like I’m nuts.

It’s a little selected part of the law.

Dorsey C. Martin, III:

Yes, Your Honor.

And you want to put the pleasure boats over in there.

Dorsey C. Martin, III:

I’m worried about what would happen, Your Honor, if we allow the states to regulate in these areas, because we tie the test of profit or commerce–

It would be the same way the state regulates one foot from the water.

If he’s out in the water one foot, the state can regulate that just as easily as it could another foot, couldn’t it?

Dorsey C. Martin, III:

–I think so.

If he’s not in a waterbound vessel, I think the state should regulate it.

Well, he’s in a navigable river, he’s one foot in it.

Dorsey C. Martin, III:

Yes, sir, it’s not like the factual situation here–

So he’s in navigation.

Dorsey C. Martin, III:

–If it’s not like the factual situation here–

I still think you have to draw a line someplace.

Dorsey C. Martin, III:

–Yes, Your Honor, I agree with you.

Well, draw it.

Dorsey C. Martin, III:

I think you should, and I think you should draw the line either on the test submitted by the court in Kelly v. Smith and adopt it in this case where you look at the totality of the circumstances involved.

You look at the instrumentalities involved; you look at the role of the parties, you look at the causation and you look at traditional concepts of maritime law.

And if you look at those in connection with this case, you find out that both individuals were pilots of vessels on navigable water.

They are subjected to the same rules as the big boats and so forth.

They are subjected to the same hazards of navigation.

Suppose they had been in five feet of water?

And I warn you I’m going to two.

Dorsey C. Martin, III:

I don’t know what would be susceptible of commerce, but if there is a determination that it is not susceptible of commerce in its present state, then admiralty law should not get into that situation, because the federal interest is not there, in protecting the uniformity for commercial vessels and so forth.

What is the source of the rule?

There must be some connection with commerce or some capability of commerce rather than navigability.

Is that the same?

Dorsey C. Martin, III:

I would hate to pin the test on commerce, Your Honor, because–

I know, but you are suggesting that.

You just suggested that a minute ago.

Didn’t the Fifth Circuit say that if it’s… did it say if it’s capable of being navigable, or if it’s capable of supporting commerce?

Dorsey C. Martin, III:

–I believe the Fifth Circuit said if it’s navigable, if it’s susceptible of commerce, which they concluded this river was susceptible of commerce.

Just relying on the Daniel Ball, weren’t they?

Dorsey C. Martin, III:

That’s correct, Your Honor, interpreted it under the commerce clause.

Suppose you’ve got a 200-foot yacht, which is pure pleasure, a crew of 40 men.

I suppose under your theory, that’s got to be treated along with an 18-foot boat with an outboard motor.

Used for pleasure.

Dorsey C. Martin, III:

I would say the test should be drawn either like St. Hilaire Moye on waterbound vessels alone.

If they’re involved, there’s admiralty law, if they’re on a navigable stream.

Or I suggest that you apply the Kelly v. Smith test, which looks at the totality of the circumstances, and even looking at Kelly v. Smith,–

How would you say if you look at waterbound vessels alone… you mentioned earlier the swimmer who hit something in navigable waters and that was held to be–

Dorsey C. Martin, III:

–Admiralty law.

–But you would say it was not because he was not aboard a waterbound vessel.

Dorsey C. Martin, III:

Not a waterbound vessel, that’s correct.

And a waterskier similarly?

Is he on a vessel or–

Dorsey C. Martin, III:

That gets a little bit… if the waterskier is being pulled by a waterbound vessel, then I think that there is a possibility of navigability.

Certainly, if the boat that the waterskier has been pulled by collides with another vessel, pleasure or otherwise, yes, there would be admiralty law.

–What if the boat the waterskier is being pulled by simply runs aground in the shallow?

Dorsey C. Martin, III:

Yes, the waterbound vessel is involved and I would say that under this test, you would have admiralty law.

It’s a hazard of navigability.

The commercial vessels runs that same risk, too.

How about the pleasure boat that is involved in a single boat accident resulting from a manufacturer’s defect in the vessel?

Still apply admiralty law to that kind of case?

Dorsey C. Martin, III:

If the boat was engaged in navigation, I would say yes, it certainly could be heard in admiralty law.

What justification is there really for denying the states their traditional jurisdiction over tort suits of that type?

Dorsey C. Martin, III:

There’s very little justification in your particular case.

There’s more justification in the case that we are litigating today, because it involves the federal interest in protecting the freedom of navigation for all vessels, and the federal interest has been reiterated and shown to us by the statutes.

Well, but of course, the federal government has enacted laws such as the 55 miles an hour law governing automobiles and other automobile regulations, but that doesn’t result in our depriving the states of their traditional jurisdiction over tort suits involving automobiles.

Dorsey C. Martin, III:

I think the automobile situation might be distinguished in that admiralty law has developed its own particular type of law and its own particular type of defenses and so forth.

And in Louisiana if a commercial automobile or commercial truck is involved in an accident, the same type of law would apply.

In Louisiana, the law of negligence would apply to that.

Dorsey C. Martin, III:

But if a commercial vessel was involved in admiralty, then admiralty’s particular type law would apply, which is different than Louisiana.

I don’t think you can make that same analogy between highway–

But now we’re talking about the purely private vessel and whether the state should be deprived of jurisdiction there.

Dorsey C. Martin, III:

–I would argue that if they are to be deprived of jurisdiction, it is because of the federal interest in this area in protecting navigation.

A collision between those two private vessels presents a hazard to another commercial vessel or commerce on that river, and that’s where the federal interest comes in because admiralty law recognizes that.

That’s why I would say the difference is there.

Mr. Martin, would you say that… just directing your attention to the manufacturer’s defect suggestion.

Is the issue… is unseaworthiness of a vessel a traditional area of state or federal jurisdiction, would you say?

Dorsey C. Martin, III:

It’s federal jurisdiction, I would say.

But I am saying that if we’re going to define traditional maritime nexus… and I agree that there should be some definition of that and there should be more than locality… to limit the type of cases that come before this Court and so forth, I’m saying that the proper test should not be on commerce or profit, because it produces irrational results.

We might not be able to determine if there’s a fishing boat right down here and this man over here is engaged in selling his fish in a very small vessel, but he’s engaged in selling his fish for a living to a seafood outlet, well, to this fellow down here, he appears to be pleasure.

He doesn’t have the words “commerce” written across his vessel.

So then the state law might control.

But later on, we find out he was selling those fish–

Does the man in the little fishing boat get maintenance inshore if he got injured?

Dorsey C. Martin, III:

–Could he get maintenance and care?

No, sir, he’d have to be a seaman for that, and I don’t think he would be a seaman.

Why wouldn’t he be a seaman?

Dorsey C. Martin, III:

Because he’s not–

He was at sea, according to you.

Dorsey C. Martin, III:

–I don’t think it would–

Maritime law only applies to sea, doesn’t it?

Dorsey C. Martin, III:


I think maritime law is broader than the Jones Act seamen type cases and so forth.

That’s what I’m trying to say.

Dorsey C. Martin, III:

Yes, sir, I think maritime law is broader than that.

I think maritime law should include collisions between purely pleasure boats on the–

But for this case, you’re not interested in anything but the collision part of admiralty.

Dorsey C. Martin, III:

–For this particular case, yes, Your Honor, but my personal feelings are that admiralty law should encompass any waterbound vessel on navigable water.

But you don’t need it for this case.

Dorsey C. Martin, III:

No, sir, that’s correct.

Well, why carry it?

Dorsey C. Martin, III:

Maybe I shouldn’t.

Warren E. Burger:

We will resume there at 1:00 o’clock.

You may continue, counsel.

Dorsey C. Martin, III:

Your Honors, it is submitted under either of the tests that have developed in the circuit courts, attempting to define what this Court meant by traditional wrong bearing a significant relationship to traditional maritime activities.

Either the test of St. Hilaire Moye v. Henderson of the Eight Circuit saying that the traditional maritime nexus is met when a waterbound vessel is involved, or the test of Kelly v. Smith of the Fifth Circuit saying that traditional maritime nexus is met when the totality of the circumstances, considering the role and instrumentality, the causation and the parties involved.

Under either one of these tests, the facts of this case support admiralty jurisdiction.

All vessels applying on navigable waters, regardless of their size or commercial status, face these unique hazards of the waters which maritime law, due to its continued experience, is peculiarly suited to handle.

It is submitted, Your Honor, that because the Fifth Circuit case in this matter recognizes the traditional concept of admiralty law in regard to the factual situation of this case, that Fifth Circuit case promotes the federal interest in keeping our navigable waters free from maritime uses, and also promotes uniformity of commerce and makes jurisdiction readily ascertainable before a collision, not after a collision, and a determination by the courts as to whether or not there is a substantial commercial interest involved; i.e., federal rules of admiralty, or whether it is purely pleasurable, invoking state rules.

And because the Fifth Circuit case provides a rational, simple test that is not all-inclusive that would accomplish what this Court would like to do in eliminating certain cases which do not have a nexus to admiralty law from being heard in admiralty, that it should be upheld.

Warren E. Burger:

Very well.

Do you have anything further?

Arthur H. Andrews:

Your Honor, I don’t want to take any rebuttal; I would like to point out to the Court because it is not in my brief, but the record will support my statement that after this collision, one of the passengers on my vessel waded over to plaintiff and pulled him ashore, so we’re talking about water that is less than waist deep in this location.

Warren E. Burger:

Very well, thank you, gentlemen, the case is submitted.