                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 16a0370n.06

                                        Case No. 16-0303

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                   FILED
                                                                                  Jul 01, 2016
IN RE: NANCY BUCCINA, et al.,                       )                        DEBORAH S. HUNT, Clerk
                                                    )
       Petitioner.                                  )       UPON      PETITION    FOR
                                                    )       PERMISSION TO APPEAL FROM
                                                    )       AN ORDER OF THE UNITED
                                                    )       STATES DISTRICT COURT FOR
                                                    )       THE NORTHERN DISTRICT OF
                                                    )       OHIO
                                                    )
                                                    )
                                                    )


BEFORE: MOORE, CLAY, and GRIFFIN, Circuit Judges.

       CLAY, Circuit Judge. Nancy Buccina was riding as a passenger on a boat driven by

Linda Grimsby on the Maumee River, near Toledo, Ohio. When the boat hit a large wave or

wake, Buccina was allegedly thrown around the boat and injured. Buccina, along with her

husband, filed a negligence action against Grimsby in the Northern District of Ohio with

jurisdiction being based on admiralty law, 28 U.S.C. § 1333(1). The case was then set for trial.

In ruling on a motion in limine, the district court held that the rule of The Pennsylvania, 86 U.S.

(19 Wall.) 125, 22 L.Ed. 148 (1873)—which puts on the ship owner the burden of proving that

its violation of a statute or regulation did not cause the injury—did not apply in this case.

Buccina now appeals that ruling, and we DISMISS for lack of jurisdiction.

                                        BACKGROUND

       This case is still pending below and has not yet gone to trial. In anticipation of trial, the

parties have filed several motions in limine. Most pertinent to this case, Buccina filed a motion



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in limine asking the district court to apply the rule of The Pennsylvania, 86 U.S. (19 Wall.) 125,

22 L.Ed. 148 (1873), which provides a specific burden of proof structure for causation in

maritime incidents. Under the rule of The Pennsylvania, a vessel in violation of a statute bears

the burden of showing not only that the violation did not cause the damage, it could not have. Id.

86 U.S. (19 Wall.) at 136. See also Waring v. Clarke, 46 U.S. (5 How.) 441, 465, 12 L.Ed. 226

(1847) (a vessel “will be held responsible for all losses until it is proved that the collision was not

the consequence [of a statutory fault]”).

        The district court declined to apply the rule of The Pennsylvania in this case because it

found that the rule applies only to collisions, and that a collision occurs when two moving

vessels strike each other—not when a ship strikes a wake or wave.                Buccina moved for

certification of an interlocutory appeal, and on February 10, 2016, the district court entered an

order stating, in relevant part:

        I certify the following question for immediate, interlocutory appeal to the United
        States Court of Appeals for the Sixth Circuit:

        Whether a “collision,” as that term is used in Inland Navigation Rules 6 and 8, 33
        C.F.R. §§ 83.06, 83.08, occurs when a vessel strikes a wake or wave, but not
        another vessel, so as to invoke the rule of The Pennsylvania, 86 U.S. (19 Wall.)
        125 (1873).

(R. 94, Order Certifying Interlocutory Appeal, PageID# 1364.)

                                            DISCUSSION

        This interlocutory appeal comes to us by certification under 28 U.S.C. § 1292(b). The

district court found that § 1292(b)’s requirements have been met: that its order (1) involves a

controlling question of law, (2) as to which there is substantial ground for difference of opinion,

and (3) that an immediate appeal from the order may materially advance the ultimate termination

of the litigation. See R. 94 at 1363 (applying § 1292(b)).




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       We agree with the district court that the issue it certified for appeal—whether a collision

occurs where a ship strikes a wake or wave, but not another ship, so as to invoke the rule of The

Pennsylvania—is a “controlling question of law” because the answer to this question determines

which party bears the burden of proof as to causation. We also agree with the district court that

an immediate appeal of this order may materially advance the ultimate termination of the

litigation because a determination that the rule of The Pennsylvania applies would make

Grimsby’s challenge more of an uphill battle than it otherwise might have been. However,

because Buccina cannot satisfy the requirement that “substantial ground for difference of

opinion” exists, she cannot pursue an interlocutory appeal.

       Courts traditionally will find that a substantial ground for difference of opinion exists

where “(1) the question is difficult, novel and either a question on which there is little precedent

or one whose correct resolution is not substantially guided by previous decisions; (2) the

question is difficult and of first impression; (3) a difference of opinion exists within the

controlling circuit; or (4) the circuits are split on the question.” In re Miedzianowski, 735 F.3d

383, 384 (6th Cir. 2013) (citation and internal quotation marks omitted).

       None of the factors this Court uses to determine whether there is a “substantial ground for

difference of opinion” are present here. For one, this is not a difficult question and a few of our

prior cases suggest that the district court got this one right—in other words, the correct resolution

of this case is guided by previous decisions. The rule of The Pennsylvania applies only to

collisions, see Grosse Ile Bridge Co. v. Am. S.S. Co., 302 F.3d 616, 622 (6th Cir. 2002), and a

collision occurs “when two moving vessels strike each other.” Bessemer & Lake Erie R.R. Co. v.

Seaway Marine Transp., 596 F.3d 357, 362 (6th Cir. 2010). See also Luckenbach S.S. Co. v. The

Thekla, 266 U.S. 328, 340 (1924) (“A collision involves two vessels.”).




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       While it is true, as the concurrence points out, that Bessemer did not address the specific

question at issue in this case,1 this Court’s and the Supreme Court’s definition of “collision” is

narrow enough to prevent what happened here from falling within it. And from a common sense

perspective, the idea that a collision occurs when a moving boat strikes a wave would seem to be

an unworkable concept since boats, once launched, are repeatedly and continually hitting waves.

Defining collision so broadly would lead to too many disputes whenever a driver of a boat comes

into contact with a wave—which happens virtually every time a boat enters the water.2 In other

words, this definition simply takes in too many circumstances that do not apply the rule of The

Pennsylvania in a practical or workable way.3

       Moreover, there is no difference of opinion in this Circuit, nor is there any circuit split

“on a question that our own circuit has not answered.” In re Miedzianowski, 735 F.3d at 384.

Finally, this case is not within the class of interlocutory appeals contemplated by § 1292(b).

That statute “was not intended to authorize interlocutory appeals in ordinary suits for personal

injuries . . . that can be tried and disposed of on their merits in a few days,” and this is one of

those cases. Kraus v. Board of County Rd. Comm’rs, 364 F.2d 919, 922 (6th Cir. 1966).



       1
          Rather, that case addressed the issue of whether there is a rebuttable presumption that in
an allision (which the Court defined as “when a moving vessel strikes a stationary object”), the
moving object is at fault. Bessemer, 596 F.3d at 362.
        2
          The reasoning set out in this opinion is not an attempt to bind the district court or
address this issue on the merits, inasmuch as our holding here is limited to concluding that we
are without jurisdiction to hear Buccina’s appeal because she cannot satisfy the requirement that
“a substantial ground for difference of opinion” exists. See 28 U.S.C. § 1292(b).
        3
          Nothing in this opinion calls into question the principle that boats may be liable for
damages to other boats for creating a dangerous or excessive wake. See Matheny v. Tenn. Valley
Auth., 557 F.3d 311, 316 (6th Cir. 2009) (a competent captain conversant in the Inland Rules of
Navigation did not need to be told that an excessive wake would be dangerous to smaller
shipping boats); see also In re Cleveland Tankers, Inc., 67 F.3d 1200, 1205-06 (6th Cir. 1995).
Our prior cases establish that a boat which causes damage to another boat because of its making
an excessive wake may be liable in tort. See id. But this, of course, is not what happened in this
case.


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                                        CONCLUSION

       Certification is designed to be used sparingly and in extraordinary cases. This simple

personal injury suit is not extraordinary, and certification of this dispute would not be a sparing

use of § 1292(b). Accordingly, we DISMISS this appeal for lack of jurisdiction.




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       KAREN NELSON MOORE, Circuit Judge, concurring in the judgment.                              I

respectfully disagree with the majority’s conclusion that “[n]one of the factors this Court uses to

determine whether there is a ‘substantial ground for difference of opinion’ are present” in this

case. Although we stated in Bessemer that a collision occurs “when two moving vessels strike

each other,” this was in the context of distinguishing a “collision” from an “allision.” Bessemer

& Lake Erie R.R. Co. v. Seaway Marine Transp., 596 F.3d 357, 362 (6th Cir. 2010). Bessemer

had no occasion to determine whether a “collision” can also occur when a vessel strikes a wake

or wave created by another vessel. See id. Further, in Matheny, we stated in dictum that “[t]he

term ‘collision’ is used in a broad sense under the Inland Navigational Rules to include a vessel’s

wake striking another vessel.” Matheny v. Tenn. Valley Auth., 557 F.3d 311, 316 n.3 (6th Cir.

2009). And, as the district court recognized in certifying this question for appeal, district courts

within our circuit have determined that the Inland Navigational Rules applicable to “collision[s]”

were violated when a vessel “was going fast enough to create a wake that caused another boat to

capsize.” Matheny v. Tenn. Valley Auth., 523 F. Supp. 2d 697, 714 (M.D. Tenn. 2007), rev’d on

other grounds, 557 F.3d at 316–20; Edington v. Madison Coal & Supply Co., No. 08-69-JGW,

2010 WL 2244078, at *2 (E.D. Ky. June 4, 2010) (rejecting argument that “‘collision’ as used in

Rule 8 . . . should be restricted to a ‘collision’ between two vessels” as opposed to “the action of

a vessel colliding with a wake”); see R. 94 (D. Ct. Certification Order at 3) (Page ID #1363).

Although these cases do not involve the situation presented here—a pleasure-boat passenger

suing the driver of that same boat after the driver collided with large wakes caused by other

vessels in a highly-trafficked area, see R. 1 (Compl. at 4) (Page ID #4)—these cases demonstrate

that “little precedent” exists to resolve this question clearly. See In re Miedzianowski, 735 F.3d

383, 384 (6th Cir. 2013). Nonetheless, I agree with the majority that “[r]eview under § 1292(b)




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is granted sparingly,” and this personal injury case is not an “exceptional case[]” for which

certification is warranted. See In re City of Memphis, 293 F.3d 345, 350 (6th Cir. 2002); see also

Kraus v. Bd. of Cty. Rd. Comm’rs, 364 F.2d 919, 922 (6th Cir. 1966). For these reasons, I

concur in the judgment.




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