
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 97-1509                               PAUL F. FLORIO, ET AL.,                               Plaintiffs - Appellants,                                          v.                       ALFRED L. OLSON, A/K/A LEONARD A. OLSON,                                Defendant - Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                  [Hon. George A. O'Toole, Jr., U.S. District Judge]                                                ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                                _____________________               Joseph  G.  Abromovitz,   with  whom  John  G.   Balzer  and               ______________________                _________________          Abromovitz & Leahy, P.C. were on brief for appellants.          ________________________               Thomas E. Clinton,  with whom Clinton & Muzyka,  P.C. was on               _________________             _______________________          brief for appellee.                                 ____________________                                  November 25, 1997                                 ____________________                    TORRUELLA,  Chief Judge.   Appellant  Paul  Florio sued                    TORRUELLA,  Chief Judge.                                ___________          Alfred Olson in the United States District Court of Massachusetts          alleging  a  maritime  tort  and  claiming  federal  jurisdiction          pursuant to 28 U.S.C.  1333.  On January 5, 1993, Florio, working          as a line handler, helped to bring the USS Kauffman into drydock.          After  the  ship was  secured, he  was  asked to  fill in  at the          capstan controls.  A capstan is a large motorized winch which can          increase  or  decrease tension  on  a  line.   This  capstan  was          operated remotely by  electrical button controls.   It was  being          used on January 5, 1993 to facilitate the movement of the caisson          door, the  device which closes  and seals the  drydock.   At some          point, when  tension was put on the line running from the capstan          to the caisson,  it snapped and seriously injured Florio.   It is          undisputed that the caisson door, the capstan and Florio were all          either connected to land or on land at the time of the accident.                    Florio's claims were based  on allegations that, first,          an  inspection of  the lines  involved in  the docking  procedure          would have revealed that  the line at issue was in a deteriorated          condition inappropriate  for  use, and  second,  that  inadequate          precautions were  in  place  to  prevent injury  to  the  capstan          operator  from a  parted  line.   The  defendant,  Olson, was  an          independent dockmaster hired by  Florio's employer, General  Ship          Corporation, to  supervise the docking procedures.  After a bench          trial, the court  ruled for defendant  and this appeal  followed.          We conclude  that under  Jerome B. Grubart,  Inc. v.  Great Lakes                                   ________________________     ___________          Dredge & Dock Co., 513 U.S. 527 (1995), the district court lacked          _________________                                         -2-          subject  matter jurisdiction  and thus  vacate  the judgment  and          dismiss the appeal.                    Although  the district court  found that it  had proper          jurisdiction  over this  claim  by  virtue  of  general  maritime          jurisdiction under 28 U.S.C.    1333(1), a reviewing court has an          obligation   to  inquire  sua  sponte  into  the  subject  matter                                    ___  ______          jurisdiction of  its cases, see  White v. Gittens, 121  F.3d 803,                                      ___  _____    _______          806  (1st  Cir.  1997),  and   to  proceed  no  further  if  such          jurisdiction  is lacking.   See  Fed. R.  Civ. P.  12(h)(3) (West                                      ___          1997) ("[w]henever  it shall appear  . .  . that the  court lacks          jurisdiction  of the subject matter, the  court shall dismiss the          action").                      In  Grubart,  the  Supreme  Court  elaborated  upon the                        _______          jurisdictional  requirements of 28 U.S.C.   1333(1), articulating          a clear two-part test.   513 U.S. at 531-34.  A  party wishing to          assert  maritime jurisdiction over  a tort must  satisfy both the          "location" and "connection"  requirements of the test.   In order          to satisfy the  "location" or "situs"  requirement, a party  must          show either that  the injury occurred on navigable  water or that          the injury  was caused by  a vessel on  navigable water.   Id. at                                       ______                        ___          534.    In   order  to  satisfy   the  "connection"  or   "nexus"          requirement,  the  party  must  show that  the  type  of incident          involved has a potentially disruptive impact on maritime commerce          and that the  "general character" of the activity  giving rise to          the  incident  shows a  substantial  relationship  to traditional          maritime  activity.   See  id.;  Evergreen  Marine Corp.  v.  Six                                ___  ___   _______________________      ___                                         -3-          Consignments of Frozen Scallops, 4 F.3d 90, 93 (1st Cir. 1993).          _______________________________                    The  district court  found  jurisdiction  based on  the          "connection" prong  of the maritime jurisdiction  test, reasoning          that "[a]lthough  both Florio  and Olson  were 'land-based,'  the          accident  occurred  in  the  course  of  a  traditional  maritime          activity and was of  the kind that  has the potential to  disrupt          maritime commerce."    While  the  district  court  appropriately          consulted the second prong of the test, it failed to consider the          first prong.  Under Grubart, maritime jurisdiction is found  only                              _______          where  the location  and the  connection prongs  are met;  one by                               ___          itself  will  not  suffice.    Therefore,  to  determine  whether          maritime  jurisdiction is  appropriate  in  this  case,  we  must          examine  whether  the  injury suffered  by  Florio  satisfies the          location requirement.                    Florio was injured while  he was working on  a drydock.          It  is well-established  that permanent  drydocks are  considered          "land" for  the purposes  of 28 U.S.C.    1333(1).   See  Victory                                                               ___  _______          Carriers,  Inc.  v. Law,  404  U.S.  202,  212 (1971);  Ellis  v.          _______________     ___                                 _____          Riverport  Enterprises, Inc.,  957 F.  Supp. 105,  107 (E.D.  Ky.          ____________________________          1997) (analyzing  numerous cases that  treat piers  and docks  as          extensions  of  land   for  the  purpose  of   applying  maritime          jurisdiction).    Therefore,  Florio's injury  did  not  occur on          navigable water.                    Florio's  injury,  then,  must have  been  caused  by a          "vessel  on navigable water"  in order to  satisfy the "location"          requirement.    However,  the  vessel   in  this  case  was  only                                         -4-          peripherally involved.  The USS  Kauffman had already been guided          into the drydock.   The line that snapped was not attached to the          ship or  supplied by  the  ship.   It ran  from one  part of  the          drydock to another  part of the drydock, and  was controlled from          shore.                      Furthermore, none  of Florio's  theories of  negligence          directly implicate the vessel.  Florio's claims stem from Olson's          alleged use of a weathered line and failure  to warn Florio about          improperly  located capstan  controls.   These  claims allege  no          causal connection between the vessel and the accident.                    In  a  supplemental  memorandum  on   this  issue,  the          appellants  cite Justice Douglas's  dissenting opinion in Victory                                                                    _______          Carriers, Inc. v. Law, 404 U.S. 202, 216-217 (1971) (Douglas, J.,          ______________    ___          dissenting),  urging  this  Court  to  avoid  "narrow,  grudging,          hypertechnical definitions" of causation  and location.   Victory                                                                    _______          Carriers  applied  the  jurisdictional standard  at  issue  to an          ________          accident  on  a drydock  which  occurred  while cargo  was  being          transferred  for  loading  aboard  a  vessel.1    In  ruling that                                        ____________________          1   Victory Carriers, unlike  the present case, involved  a claim              ________________          brought under both the Longshore and Harbor Workers' Compensation          Act  ("LHWCA"), 33  U.S.C.      903(a)(1),  905(b),  and  general          maritime  law, 28  U.S.C.     1332, 1333.   At  the time  Victory                                                                    _______          Carriers was  heard, claims under  the LHWCA were subject  to the          ________          same jurisdictional requirements  as suits brought only  under 28          U.S.C.    1333(1).  Since Victory Carriers  was decided, however,                                    ________________          Congress  has substantially  amended the  LHWCA.  See  Guilles v.                                                            ___  _______          Sea-land Service, Inc., 12 F.3d  381, 384 (2d Cir. 1993) (tracing          ______________________          the amendments  to the  LHWCA).  One  of the  amendments extended          coverage  under the Act to include  certain contiguous land areas          (such as  drydocks) which  had traditionally  been excluded  from          maritime jurisdiction.  A  separate jurisdictional provision  was          added to the LHWCA to accomplish this extension.  See 33 U.S.C.                                                              ___          903(a).   Therefore, a case  brought under the LHWCA  today would                                         -5-          maritime jurisdiction did  not apply to the  case, Justice White,          writing for the majority, stated:                    In  the  present  case  .  .  .  the  typical                    elements  of a  maritime cause of  action are                    particularly attenuated:  [the injured party]                    was not injured by equipment that was part of                    the ship's usual  gear or that was  stored on                    board, the equipment that  injured him was in                    no way attached to the ship, [the  equipment]                    was not under the control of the ship  or its                    crew, and the  accident did not  occur aboard                    ship  or on the gangplank.  Affirmance of the                    decision  below  would  raise a  host  of new                    problems   as  to   the  standards   for  and                    limitations on the  applicability of maritime                    law to accidents on land.          Id. at  213-214.   This reasoning disposes  of the  present case.          ___          Jurisdictional  boundaries must  be respected,  even  where those          boundaries seem  "narrow"  or  "hypertechnical,"  lest  confusion          result  for litigants  trying to determine  the proper  forum for          their claims.                      The  "location" requirement  for maritime  jurisdiction          has not been  met in this case  because no vessel can be  said to          have  caused Florio's injuries.   We  therefore need  not address          whether the "connection"  requirement has been satisfied,  nor do          we reach the merits of this case.                    For  the reason  stated  herein,  the  opinion  of  the          district court is vacated and this case is dismissed.                            _______                  _________                                        ____________________          encounter a  less stringent "location"  test than a  case brought          under  the  general maritime  law  as  codified  at 28  U.S.C.             1333(1).  In  this narrow sense, the opinion  has been superseded          by  statutory reform.   However, Victory Carriers  represents the                                           ________________          Supreme Court's application of the  jurisdictional standard which          persists under general maritime law and is at issue in this case.          We note that  Florio qualified for benefits under  the LHWCA, but          that those claims are not before this Court.                                         -6-                                         -7-
