     Case: 12-30725   Document: 00512179895   Page: 1   Date Filed: 03/19/2013




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                               FILED
                                                             March 19, 2013

                               No. 12-30725                   Lyle W. Cayce
                                                                   Clerk

IN RE: IN THE MATTER OF THE COMPLAINT OF BERTUCCI
CONTRACTING CO., L.L.C., as Owner of the M/V SHARON GAIL, for
Exoneration from or Limitation of Liability

BERTUCCI CONTRACTING COMPANY, L.L.C., as owner of the M/V Sharon
Gail,

                                        Petitioner-Appellant
v.

DANIEL P. WAGNER; SHIRLEY J. WAGNER; MICHAEL J. APPLETON;
MICHELLE H. APPLETON, individually and on behalf of their minor
children, H. A. and M.A.; MARIA NATAL; ET AL,

                                        Claimants-Appellees


IN RE: IN THE MATTER OF THE COMPLAINT OF NASDI, L.L.C., as
owner pro hac vice and operator of the OU141, for Exoneration from and/or
Limitation of Liability

NASDI, L.L.C., as owner pro hac vice and operator of the OU141,

                                        Petitioner-Appellant
v.

DANIEL P. WAGNER; SHIRLEY J. WAGNER; MARIA NATAL; DAVID
CANNON; KATIE CANNON; ET AL,

                                        Claimants-Appellees
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                                       No. 12-30725



                   Appeals from the United States District Court
                       for the Eastern District of Louisiana
                              USDC No. 2:12-CV-664


Before KING, SOUTHWICK, and GRAVES, Circuit Judges.
PER CURIAM:*
       This consolidated limitation of liability action arises out of the demolition
of the original Interstate 10 Twin Span Bridges across Lake Pontchartrain. The
State of Louisiana contracted with Petitioners-Appellants NASDI, L.L.C., and
Bertucci Contracting Co., L.L.C., for the demolition and removal of parts of the
Twin Span Bridges. Claimants-Appellees are affected residents of the Lakeshore
Estates Subdivision and other residential areas who brought a state-court action
alleging nuisance as a result of the noise, dust, and vibrations caused by
Appellants’ activities. In the same state action, Appellees also alleged that the
Appellants’ vessels trespassed onto their waterfront property, causing damage.
Appellants subsequently filed limitation actions in the Eastern District of
Louisiana under the Limitation of Liability Act, 46 U.S.C. §§ 30501, et seq. The
district court preliminarily enjoined the state action, but later granted in part
and denied in part Appellees’ motions to dismiss the limitation actions for lack
of subject matter jurisdiction. In separate orders the district court also relaxed
and lifted an injunction with respect to certain claims, and denied
reconsideration. Appellants appeal the district court’s orders. For the following
reasons, we vacate the district court’s orders and remand for consideration of
Appellees’ allegedly interwoven land- and vessel-based nuisance claims.


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.

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                                 No. 12-30725

           I. FACTUAL AND PROCEDURAL BACKGROUND
A.    Hurricane Katrina
      The original Interstate 10 Twin Span Bridges (“Twin Spans”) crossed Lake
Pontchartrain and connected the Lake’s southern and northern shores. In 2005,
Hurricane Katrina made landfall in southeast Louisiana and severely damaged
the Twin Spans. The Louisiana Department of Transportation and Development
initially was tasked with repairing the Twin Spans. Because of the extensive
damage caused by Hurricane Katrina, the State of Louisiana ultimately decided
that the Twin Spans were too vulnerable to storm surges and decided to replace
them with two new bridges. Work on the replacement bridges began on July 13,
2006. The first bridge opened on July 9, 2009, and the second on April 7, 2010.
The Twin Spans then were permanently closed to traffic.
B.    Demolition of the Twin Spans
      The State of Louisiana contracted with various companies to effectuate the
demolition and removal of the Twin Spans and the repurposing of the associated
concrete. This process began in May 2011, and was expected to generate in
excess of 244,000 tons of concrete from the Twin Spans. As part of the Twin
Spans’ demolition and removal, barges and tugboats transported slabs of
concrete to a “staging area” just north of Lake Pontchartrain. The staging area
was located on an undeveloped piece of property accessible from the Lake via a
canal. Vessels carried concrete through the canal. On their way they passed the
Lakeshore Estates Subdivision and other residential areas (“Lakeshore
Estates”), which were adjacent to the staging area. In so doing, the vessels
allegedly trespassed on part of the canal purportedly owned by residents of the
Lakeshore Estates. The currents from those vessels also allegedly eroded and
caused damage to boathouses and bulkheads owned by residents of Lakeshore
Estates.



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                                   No. 12-30725

      According to testimony adduced in the state court and to depositions filed
as a part of the motion for reconsideration, once the concrete arrived at the
staging area, the tugboats rammed the barges onto shore and kept them there
by revving their engines anywhere from 30 minutes to several hours. While
tugboats held the barges in place, large slabs of concrete were unloaded to shore.
This process entailed dragging the concrete off the metal barges or picking up
the concrete by crane and dropping it back on the barges to break it into smaller
pieces. After the concrete was unloaded, industrial crushers and grinders broke
it down or crushed it into smaller parts, and sorted it by size. This again
involved picking up slabs of concrete and repeatedly smashing them until they
were reduced to the desired size. Once empty, the barges would be cleaned.
This involved pushing any remaining debris from the barges into the water.
This debris also allegedly entered part of the Lakeshore Estates.
      After being transported from the Twin Spans, unloaded, and crushed
down, some of the concrete was packed into geo-textile “mattresses.” These
mattresses initially were stored at the staging area, but later were loaded back
onto the barges and transported to Lake Borgne to be used for shoreline
protection. Other concrete from the staging area was used in the creation of an
artificial reef and construction of a fishing pier.
      Aside from allegedly being very loud, the entire process purportedly also
created dust at the point at which the concrete was unloaded and when the
concrete was crushed, which then settled on the Lakeshore Estates.            The
activities at the staging area also allegedly created vibrations that disturbed and
damaged the Lakeshore Estates.
C.    Appellants’ Operations
      The State contracted with Petitioners-Appellants NASDI, L.L.C.
(“NASDI”), and Bertucci Contracting Co., L.L.C. (“Bertucci”) (NASDI and
Bertucci are collectively referred to herein as “Shipowners”), to help complete the

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                                  No. 12-30725

process of demolishing and removing the Twin Spans and repurposing the
concrete remains.      The Louisiana Department of Transportation and
Development contracted with NASDI to demolish and remove parts of the Twin
Spans and transport them to the staging area. Bertucci entered into a contract
with the Louisiana Office of Coastal Protection and Restoration to break up the
concrete, place it into mattresses, and transport the mattresses to Lake Borgne.
Bertucci also regularly transported light and heavy equipment to the staging
area by boat and barge. NASDI sub-contracted with Bertucci to assist in
breaking down the concrete at the staging area.
D.    The Residents’ State-Court Action
      Claimants-Appellees (“Residents”) are residents of the Lakeshore Estates.
On January 17, 2012, Residents filed a Petition for Declaratory Judgment,
Injunctive Relief, and Class Action Lawsuit Related to Liability and Damages
in the Civil District Court for the Parish of Orleans. Residents’ petition asserted
that the Shipowners’ activities created noise, dust, and vibrations that resulted
in personal injury, property damage, and nuisance to nearby residential areas.
Residents further alleged that the Shipowners’ vessels trespassed into private
waterways near the staging area causing further damage.
      Residents then filed a Rule to Show Cause to obtain a hearing date on
their request for a preliminary injunction. The state court set a preliminary
injunction hearing date for March 9, 2012. That date was later delayed to March
20, 2012, to provide Shipowners a hearing on various exceptions filed in response
to Residents’ petition. At the March 9, 2012, exceptions hearing, the state court
denied all of the Shipowners’ exceptions, save for an exception related to venue,
which it took under advisement, but later denied.
E.    The Shipowners’ Limitation Actions
      On March 9, 2012, Bertucci filed a limitation of liability action in the
Eastern District of Louisiana pursuant to the Limitation of Liability Act

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                                       No. 12-30725

(“Limitation Act”), 46 U.S.C. §§ 30501, et seq. The Limitation Act permits a
vessel’s owner to limit its liability to “the value of the vessel and pending
freight,” and allows a district court to enjoin state-court proceedings.1 Id.
§§ 30505, 30511; see also Fed. R. Civ. P. Supp. F(3). NASDI followed suit on
March 14, 2012. The district court enjoined Residents from prosecuting their
state-court action and consolidated the two limitation actions.
       On March 18, 2012, Residents filed an Emergency Motion to Limit Stay,
Lift Stay, and/or Set Preliminary Injunction Hearing. Residents sought to
modify or limit the district court’s stay to obtain pending injunctive relief in
state court. The district court held a status conference on March 19, 2012, and
denied the Residents’ motion without prejudice to the Residents’ right to bring
their motion again at a later date.
       On March 26, 2012, Residents moved to dismiss the Shipowners’ limitation
actions for lack of subject matter jurisdiction and/or to lift the stay. The district
court granted their motions in part and denied them in part. The district court
first construed the state-court petition to include separate “land-based” and
“vessel-based” claims. It then ruled that admiralty jurisdiction did not attach to
what it termed the land-based claims, “i.e., the noise, dust, and vibrations
allegedly emanating from the concrete breaking operation at the staging area.”
The court also (1) declined to exercise supplemental jurisdiction over what it
deemed the land-based claims; and (2) held that admiralty jurisdiction attached
to vessel-based claims for trespass by barges and tugboats traveling on the
Residents’ side of the canal. In a separate order, the court lifted the injunction




       1
         Importantly, the Limitation Act does not, itself, confer federal jurisdiction; courts
instead look to whether they can exercise admiralty jurisdiction over the claims raised in the
limitation complaint. See Guillory v. Outboard Motor Corp., 956 F.2d 114, 115 (5th Cir. 1992)
(per curiam).

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                                     No. 12-30725

as to the land-based claims.2 NASDI filed a motion for reconsideration, which
the district court summarily denied.
      Shipowners timely filed an interlocutory appeal of the district court’s
dismissal of their nuisance-related limitation actions for lack of subject matter
jurisdiction, and the court’s lifting of its stay as to those claims.3
                                 II. DISCUSSION
A.    Standard of Review
      “When addressing a dismissal for lack of subject matter jurisdiction, we
review application of law de novo and disputed factual findings for clear error.”
United States ex rel. Branch Consultants v. Allstate Ins. Co., 560 F.3d 371, 376
(5th Cir. 2009). “[A] motion to dismiss for lack of subject matter jurisdiction
should be granted only if it appears certain that the plaintiff cannot prove any
set of facts in support of his claim that would entitle plaintiff to relief.”
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).
      We review a district court’s decision to lift a stay for abuse of discretion.
In re Tetra Applied Techs. L P, 362 F.3d 338, 340 (5th Cir. 2004).
B.    Subject Matter Jurisdiction
      The district court held that it had subject matter jurisdiction over the
trespass claims, but that it lacked subject matter jurisdiction over nuisance
claims relating to noise, dust, and vibrations because those claims were limited
to land-based activities outside the court’s admiralty jurisdiction. According to
the district court, “the noise, dust, and vibrations ha[d] nothing to [do] with acts
occurring on vessels on navigable waters” because the “delivery of the concrete,



      2
        The district court did not dismiss the Shipowners’ limitation actions against the
Residents’ trespass claims and this decision has not been appealed.
      3
        Shipowners first filed a notice of appeal on July 6, 2012. After their motion for
reconsideration was summarily denied, Shipowners filed a second notice of appeal.


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                                   No. 12-30725

standing alone, did not create the noise, dust, and vibrations that allegedly
emanate[d] from the staging area.” Put another way, “the land-based claims did
not arise until the separate act of crushing commenced on land.” On appeal,
Shipowners argue that “[t]he district court either overlooked or ignored the
[Residents’] own allegations in their petition that all defendants, including the
vessel-related defendants, proximately caused the dust, noise, vibrations, and
nuisances that resulted in alleged personal injury and property damage to the
[Residents].”
      Simply put, the dispute is about what the Residents alleged. The district
court viewed this case as involving two sets of claims—vessel-based trespass
claims and land-based nuisance claims. Shipowners disagree and contend that
Residents have alleged three sets of claims—vessel-based trespass claims, land-
based nuisance claims, and vessel-based nuisance claims.             We agree with
Shipowners that the district court’s failure to recognize a separate category of
vessel-based nuisance claims was error. Moreover, because the district court’s
opinion was predicated upon its understanding of the nuisance claims as entirely
land-based, it is necessary to vacate the district court’s orders to permit it to
reconsider its jurisdiction over the Shipowners’ limitation actions.
      1.    Vessel-based nuisance claims
      A district court may dismiss a claim for lack of subject matter jurisdiction
on the basis of “(1) the complaint alone; (2) the complaint supplemented by
undisputed facts evidenced in the record; or (3) the complaint supplemented by
undisputed facts plus the court’s resolution of disputed facts.” Williamson v.
Tucker, 645 F.2d 404, 413 (5th Cir. May 1981). Our standard of review varies
depending on which basis the district court relies.
      [I]f the court’s decision rests on one of the first two of these . . . our
      review is limited to determining whether the district court’s
      application of the law is correct and, if the decision is based on
      undisputed facts, whether those facts are indeed undisputed. But if

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                                   No. 12-30725

      the court has relied in addition on its own determination of disputed
      factual issues, we must then review those findings as we would any
      other district court resolution of factual disputes—we must accept
      the district court’s findings unless they are “clearly erroneous.”
Id. (citation omitted).
      The district court did not explicitly state on which basis it relied for its
conclusion that the Residents’ nuisance claims arose purely out of land-based
activities. Although it stated that “[a] fair reading of [the Residents’] state-court
petition reveals that the bulk of their case concerns obtaining relief under state
law from the noise, dust, and vibrations emanating from the onshore concrete
crushing operation,” it also—in a footnote—referred to a Resident’s deposition
transcript. Regardless of why the district court did not address the vessel-based
nuisance claims, our review of the record makes clear that such claims were
alleged.
      We begin our analysis with the parties’ pleadings. NASDI’s amended
limitation complaint provided that “[Residents] allege personal injury, property
damage, nuisance and trespass as a result of the operations of NASDI, including
but not limited to the Vessels.” It also stated that “[Residents] have alleged that
the Vessels operated by NASDI have trespassed on their property, and the
Vessels’ existence in the staging area . . . constitutes a nuisance.” Bertucci’s
limitation complaint stated that “[Residents] allege that Bertucci has generated
excessive levels of noise and high levels of vibrations and movement of the
ground while providing barge service.”
      The Residents’ allegations appear in their state-court petition (which was
attached to the Shipowners’ limitation complaints) and do not strictly
distinguish between the sources of nuisance. “The work performed by NASDI
[and] . . . Bertucci . . . produce[d] extremely high levels of concrete dust and
particulate matter composed of quartz and other forms of crystalline silica . . . .
excessive levels of noise . . . . [and] high levels of vibrations and movement of the

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                                    No. 12-30725

ground.” “Uncontrolled dust becomes airborne and is blown from the staging
area” and “accumulates on the properties of [Residents].” “The vibrations,
movement of the ground, and/or pile driving has resulted in cracks at various
points in the concrete slabs and homes of [Residents].”
      Considering the Shipowners’ limitation complaints alone, it is clear that
Shipowners expressly asserted that they are the subject of nuisance claims in
state court as a result of both land- and vessel-based activities. See Life Partners
Inc. v. United States, 650 F.3d 1026, 1029 (5th Cir. 2011) (review of dismissal for
lack of subject matter jurisdiction “takes as true all of the allegations of the
complaint and the facts set out by the plaintiff”). While the state-court petition
in various places references the noise, dust, and vibrations coming from the
staging area, other parts of the petition do not distinguish between land- and
vessel-based activities. See Ramming, 281 F.3d at 161 (dismissal for lack of
subject matter jurisdiction only appropriate where it is certain that a plaintiff
cannot prove any set of facts in support). Moreover, even where the petition only
refers to the staging area, it is unclear whether this solely refers to the concrete
crushing or also the unloading of the concrete from the barges. Courts in similar
contexts have opted not to allow parties to artificially manipulate the scope of
their allegations to avoid limitation. See In re Shell Oil Co., 780 F. Supp. 1086,
1090 (E.D. La. 1991) (“Perhaps recognizing that their claims against Shell would
not escape the umbrella of limitation, the moving claimants have carefully
worded certain claims so as to avoid allegations that Shell’s liability flows from
its ‘ownership’ or ‘control’ of the [vessel]. Nevertheless, analysis of their claims
leads to the inescapable conclusion that, in the event that claimants are
successful in holding any of the Shell entities accountable, it may well be as
‘owner’ of the vessel . . . .” (footnotes omitted)).
      Evidence beyond the pleadings confirms our conclusion as to the nature
of the Residents’ claims. When Residents brought their motion to dismiss and

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                                      No. 12-30725

modify the stay, Shipowners responded by arguing that Residents alleged not
only nuisance from concrete crushing operations on land, but also that the
vessels “constituted a nuisance,” because of “the daily transport and discharge
of concrete by barge and tug at the staging area.”                  NASDI’s motion for
reconsideration also included testimony by various Residents showing that they
suffered from the noise, dust, and vibrations caused by overlapping land- and
vessel-based activities.4
       Accordingly, the district court erred in failing to recognize the Residents’
vessel-based nuisance claims, and the Shipowners’ efforts to limit damages as
a result thereof. Thus, at the very least, the district court was required to
consider whether it had jurisdiction over the vessel-based nuisance claims, and
whether those claims fell within the scope of the Limitation Act.
       2.     Land-based nuisance claims
       Shipowners not only challenge the district court’s failure to recognize the
Residents’ vessel-based nuisance claims, but also assert that the district court
erred in dismissing the land-based nuisance claims because “the claims asserted
against [them] cannot be neatly separated into distinct sets of claims.” We do
not express any opinion as to whether the Residents’ vessel-based nuisance
claims can be separated from their land-based counterparts. We agree, however,
that should the district court conclude that it had jurisdiction over the vessel-
based nuisance claims, its jurisdictional analysis of the land-based nuisance
claims might be affected.
       “The Limitation of Liability Act does not confer jurisdiction upon federal
courts.” Guillory, 956 F.2d at 115; see also In re Silver Slipper Casino Venture
LLC, 264 F. App’x 363, 365 (5th Cir. 2008) (unpublished). Instead, we look to
whether the district court had admiralty jurisdiction over each claim. Guillory,

       4
         The Residents’ brief concedes that “vessel-based activities also result[ed] in dust,
noise, and vibrations.”

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                                       No. 12-30725

956 F.2d at 115; see also Luera v. M/V Alberta, 635 F.3d 181, 189 (5th Cir. 2011)
(admiralty jurisdiction is a form of subject matter jurisdiction); Powell v.
Offshore Navigation, Inc., 644 F.2d 1063, 1069 (5th Cir. Unit A May 1981)
(noting that “each claim is at least within the bounds of federal admiralty
jurisdiction”); Peytavin v. Gov’t Emps. Ins. Co., 453 F.2d 1121, 1127 (5th Cir.
1972) (summary calendar). Where an action includes both maritime and non-
maritime claims, supplemental jurisdiction may be available as to the latter. 28
U.S.C. § 1367; see also Loeber v. Bay Tankers, Inc., 924 F.2d 1340, 1345 (5th Cir.
1991) (per curiam).
       Pursuant to the test articulated by the Supreme Court in Jerome B.
Grubart, Inc. v. Great Lakes Dredge & Dock Co., a party invoking federal
admiralty jurisdiction “must satisfy conditions both of location and of connection
with maritime activity.” 513 U.S. 527, 534 (1995). To satisfy the location
requirement a party must show that “the tort occurred on navigable water or
[that an] injury suffered on land was caused by a vessel on navigable water.”5
Id. Satisfaction of the connection requirement requires a party to show, first,
that “the general features of the type of incident involved” had a “potentially
disruptive impact on maritime commerce.” Id. (internal quotation marks and
citations omitted). Second, a party seeking to satisfy the connection requirement
must show that “the general character of the activity giving rise to the incident
shows a substantial relationship to traditional maritime activity.” Id. (internal
quotation marks and citation omitted).
       Applying that test, the district court concluded that it did not have
admiralty jurisdiction over the land-based nuisance claims. We agree that,



       5
         The second disjunctive exists by virtue of the Admiralty Extension Act, which provides
that “[t]he admiralty and maritime jurisdiction of the United States extends to and includes
cases of injury or damage, to person or property, caused by a vessel on navigable waters, even
though the injury or damage is done or consummated on land.” 46 U.S.C. § 30101(a).

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                                         No. 12-30725

considered in isolation from the other claims at issue here, admiralty jurisdiction
would not extend to nuisance claims arising out of concrete crushing operations
at the staging area. However, where an injury is the result of both land- and
vessel-based activity, the Grubart test is modified. In particular, Grubart’s
“substantial relationship test is satisfied when at least one alleged tortfeasor
was engaging in activity substantially related to traditional maritime activity
and such activity is claimed to have been a proximate cause of the incident.” Id.
at 541; see Scarborough v. Clemco Indus., 391 F.3d 660, 665 (5th Cir. 2004)
(finding second part of Grubart’s connection requirement satisfied because “one
of the tortfeasors in this case was involved in traditional maritime activity”).6
Even if the district court determines that admiralty jurisdiction does not extend
over the land-based nuisance claims by virtue of the vessel-based nuisance



       6
          We recognize that our interpretation of Grubart is not without controversy. See
Raffray v. Gulf Logistics, LLC, No. 10-1017, 2010 WL 5055849, at *6 n.7 (E.D. La. Dec. 2,
2010) (unpublished) (noting divergence of views in academic literature). Our decision in
Scarborough has been challenged for misinterpreting Grubart. See generally David W.
Robertson, Admiralty Jurisdiction Over One Co-Tortfeasor Cannot Effectuate Admiralty
Jurisdiction Over Another, 37 J. Mar. L. & Com. 161, 168 (2006) (arguing that Scarborough
misinterpreted Grubart to stand for the proposition that “the existence of admiralty
jurisdiction over a plaintiff’s claims against one of several co-tortfeasors calls for the exercise
of admiralty jurisdiction over the claims against all of the tortfeasors”). But see Thomas C.
Galligan, Jr., The Admiralty Extension Act at Fifty, 29 J. Mar. L. & Com. 495, 505 (1998)
(“Critically, the Court’s decision in Grubart implies that in a multiple concurrent tortfeasor
case, where there is maritime jurisdiction over a maritime joint tortfeasor, there is maritime
jurisdiction over the land-based tortfeasor as well.”); see also White v. Sabatino, 526 F. Supp.
2d 1143, 1156 (D. Haw. 2007) (“Even if the County Defendants’ activities are land-based . . .
consideration of such activity does not defeat admiralty jurisdiction when another tortfeasor
was engaged in activity substantially related to a traditional maritime activity and such
activity is claimed to be a proximate cause of Plaintiff’s injury.”); AGIP Petrol. Co. v. Gulf
Island Fabrication, Inc., 920 F. Supp. 1330, 1337–38 (S.D. Tex. 1996); In re Chi. Flood Litig.,
719 N.E.2d 1117, 1124–29 (Ill. App. Ct. 1999); Charles Alan Wright et al., 14AA Federal
Practice & Procedure § 3676.1 (4th ed. 2012) (“Given that Congress opted against the bright
line of the locality test when it adopted the Admiralty Extension Act, it is only fair that
land-based tortfeasors are subject to admiralty jurisdiction, as land-based victims have been.”)
We leave it to the district court to determine the extent to which this case mirrors
Scarborough, should the district court determine that it has jurisdiction over the vessel-based
nuisance claims.

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                                       No. 12-30725

claims (as to which we express no opinion), the district court could still exercise
supplemental jurisdiction over the land-based claims. See Loeber, 924 F.2d at
1345 (“[A] federal court entertaining a maritime claim has the discretion to
adjudicate non-federal claims derived from a common nucleus of operative
fact . . . .” (quoting Feigler v. Tidex, Inc., 826 F.2d 1435, 1439 (5th Cir. 1987))).
       Having not recognized the presence of vessel-based nuisance claims, the
district court also did not consider how those claims might affect its jurisdiction
over the remaining claims.7 Such consideration is crucial given the Shipowners’
allegations that the nuisance claims closely are intertwined. We remand this
matter to the district court to consider in the first instance.
C.     Limitation Act
       Pursuant to the Limitation Act, a court “shall enjoin the further
prosecution of any action or proceeding against the plaintiff or the plaintiff’s
property with respect to any claim subject to limitation in the action.” Fed. R.
Civ. P. Supp. Admiralty & Maritime Claims R. F(3). Claims subject to limitation
“are those arising from any . . . thing, loss, damage, or forfeiture, done,
occasioned, or incurred, without the privity or knowledge of the owner.” 46
U.S.C. § 30505(b). However, “[t]he history of application of the Limitation Act


       7
          Although we do not reach whether there is admiralty jurisdiction over the vessel-
based nuisance claims, we note that Shipowners make a colorable argument in favor of
jurisdiction. For example, the complained-of dust, noise, and vibrations from the vessels were
an “injury [that] was caused by a vessel in navigable water.” Scarborough, 391 F.3d at 663
(quoting Grubart, 513 U.S. at 534). We also can imagine situations in which such irritants
would have the potential to disrupt maritime commerce, either by causing injury or inhibiting
other vessels from operating in the canal or on the Lake. See Coats v. Penrod Drilling Corp.,
61 F.3d 1113, 1119 (5th Cir. 1995) (en banc) (onboard injury can disrupt maritime commerce
by delaying the vessel’s primary activity). Finally, there is little question that “unloading of
[a] ship’s cargo”—in this case, concrete—is a “traditional maritime activity.” Drachenberg v.
Canal Barge Co., 571 F.2d 912, 917 (5th Cir. 1978); see also Moser v. Tex. Trailer Corp., 623
F.2d 1006, 1009 (5th Cir. 1980) (describing transportation of cargo as a traditional maritime
activity).



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                                   No. 12-30725

reflects the limiting of liabilities arising out of damage to cargo or goods, injuries
or damages resulting from collision, salvage claims, fires, personal injury suits
by seamen, and damages to structures or persons on land.” In re Transporter
Marine, Inc., 217 F.3d 335, 338–39 (5th Cir. 2000) (concluding that regulatory
penalties resulting from Coast Guard proceedings are not “among the kinds of
maritime misfortune that are subject to the Limitation Act”); see also Magnolia
Marine Transp. Co. v. Laplace Towing Corp., 964 F.2d 1571, 1575 (5th Cir. 1992)
(noting that Limitation Act “is directed at maritime misfortunes”).
      The district court premised its decision to allow some of the Residents’
claims to proceed in state court on its clear division between land-based nuisance
claims and vessel-based trespass claims.            As with the district court’s
jurisdictional analysis, the fact that the Residents’ allegations also include
vessel-based nuisance claims calls into question the district court’s rationale for
lifting the injunction of the nuisance claims. We also are skeptical of the
Residents’ contention that they are able to distinguish between the causes of
nuisance. The dust, noise, and vibrations complained of originated from two
sources—the transportation and unloading of concrete at the staging area, and
the subsequent crushing of the concrete.           As the Residents’ brief itself
acknowledges, “the concrete-crushing activities at the staging area and the
vessel activities may have occurred during the same or similar time periods.”
During oral argument, counsel for Residents also agreed that if this matter
proceeds to trial, Shipowners would be entitled to ask that the jury apportion
damages between injury caused by concrete crushing and the vessels.
      It thus is entirely unclear whether—in view of the potential difficulty of
apportioning as to any individual Resident the damages originating from land-
and opposed to vessel-based activities—the nuisance claims can separately be
adjudicated. Accordingly, on remand, the district court should consider whether
the land- and vessel-based nuisance claims truly are intertwined and, if so,

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                                        No. 12-30725

whether lifting its stay as to some of those claims is appropriate.8 See Ackerson
v. Bean Dredging LLC, 589 F.3d 196, 209–10 (5th Cir. 2009) (“When a shipowner
files a petition under the Limitation of Liability Act, all other suits against the
shipowner are automatically stayed, and all claims should be litigated in the
limitation proceeding. But if a plaintiff makes certain stipulations, including
that he will not enforce any judgment against the shipowner until the court has
ruled on the limitation petition, the court presiding over the limitation action
may stay that action and allow the merits actions to proceed.” (footnotes
omitted)); see also In re ADM/Growmark River Sys., Inc., 234 F.3d 881, 885–86
(5th Cir. 2000).
                                   III. CONCLUSION
       For the aforementioned reasons, we vacate the district court’s (1) dismissal
of the land-based claims relating to noise, dust, and vibrations for lack of subject
matter jurisdiction, (2) relaxing and lifting of the stay with respect to what it
termed the “land-based claims,” and (3) denial of reconsideration. On remand,
the district court is to consider whether, in light of our determination that the
Residents’ allegations include vessel-based nuisance claims, the district court
had admiralty or supplemental jurisdiction over the vessel-based nuisance


       8
         We are cognizant of the well-known tension between the Limitation Act and 28 U.S.C.
§ 1333(1)’s “saving to suitors” clause (“Saving Clause”). Lewis v. Lewis & Clark Marine, Inc.,
531 U.S. 438, 448 (2001); see also Odeco Oil & Gas Co., Drilling Div. v. Bonnette, 74 F.3d 671,
674 (5th Cir. 1996). The Saving Clause provides that federal courts have original and
exclusive jurisdiction over “[a]ny civil case of admiralty or maritime jurisdiction,” but also
“saving to suitors in all cases all other remedies to which they are otherwise entitled.” 28
U.S.C. § 1333(1). We have recognized that claims may proceed outside a limitation action “(1)
when the total amount of the claims does not exceed the shipowner’s declared value of the
vessel and its freight, and (2) when all claimants stipulate that the federal court has exclusive
jurisdiction over the limitation proceeding, and that the claimants will not seek to enforce a
damage award greater than the value of the ship and its freight until the shipowner’s right
to limitation has been determined by the federal court.” Odeco Oil, 74 F.3d at 674. Counsel
for Residents represented that there were, as yet, no stipulations in this case, and counsel for
Shipowners agreed that this case did not yet require consideration of the Saving Clause. We
thus do not address it.

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                                  No. 12-30725

claims. The district court also is to consider anew whether it had admiralty
jurisdiction over the Residents’ land-based nuisance claims. If the district court
concludes that it does not have admiralty jurisdiction, it also should consider
whether it would be appropriate to exercise supplemental jurisdiction over the
seemingly intertwined land-based nuisance claims. Similarly, it should consider
whether the Limitation Act requires maintaining a stay over the entire state-
court proceeding or if some of the claims can proceed. Each party shall bear its
own costs.
      VACATED and REMANDED with instructions.




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