UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LEE JETER BROCK, Guardian Ad
Litem for Elizabeth H. Hardy, a
Minor; LEE JETER BROCK,
Individually,
Plaintiffs-Appellants,
                                                                  No. 95-2302
v.

FORREST RAY LEWIS; JAN LEWIS;
LUCY LEWIS,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, Chief District Judge.
(CA-95-44-7-F)

Argued: March 7, 1996

Decided: May 24, 1996

Before MURNAGHAN and ERVIN, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Henry London Anderson, Jr., ANDERSON, COX &
ENNIS, Wrightsville Beach, North Carolina, for Appellants. John
Lloyd Coble, MARSHALL, WILLIAMS & GORHAM, Wilmington,
North Carolina, for Appellees. ON BRIEF: William Robert Cher-
ry, Jr., MARSHALL, WILLIAMS & GORHAM, Wilmington, North
Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Fourteen-year-old Elizabeth Hardy visited her friend Lucy Lewis
at Lucy's parents' home situated on the Intracoastal Waterway in
North Carolina. Elizabeth dove off a dock belonging to the Lewises
and extending from a pier into the Waterway, which is undisputedly
a maritime location. She had on numerous occasions before as a visi-
tor to the Lewises' home made such dives. But this time, the depth
of the water where Elizabeth dove was approximately one foot instead
of the usual four feet, so she struck bottom and badly injured herself.
Elizabeth and her mother, Lee Jeter Brock, sued the Lewises in fed-
eral district court. Diversity did not exist, but they asserted federal
jurisdiction under 28 U.S.C. § 1333(1) by invoking Federal Rule of
Civil Procedure 9(h) and labelling the matter an admiralty claim.1

Elizabeth had reached the Lewis home by way of a wave runner2
_________________________________________________________________
1 Perhaps Elizabeth and her mother wanted the case in federal court
because, under North Carolina law, contributory negligence provides a
complete defense to a suit claiming negligence. See Champs Conve-
nience Stores, Inc. v. United Chemical Co., 406 S.E.2d 856, 861 (N.C.
1991). The shallowness of the water at the spot where Elizabeth dove
presented a real likelihood of a finding of contributory negligence on her
part. In admiralty, however, comparative negligence rather than contribu-
tory negligence applies. Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 408-
09 (1953).
2 The district court explained that "wave runner" is "a brand name for
a personal watercraft, also commonly called a `jet ski.'"

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which she secured to the dock. While she sunbathed, thirteen-year-old
Lucy drove the wave runner in the Waterway. In response to Lucy's
call to join her, Elizabeth made her unfortunate dive. The complaint
alleged that Lucy and her parents were negligent: Lucy for inviting
Elizabeth to dive into the water and climb aboard the wave runner,
and the Lewises for failing to warn Elizabeth about the shallow water
and to supervise or control their daughter.

Federal "admiralty and maritime jurisdiction" under Article III,
Section 2 of the United States Constitution exists when conditions
both of (1) location and (2) connection with maritime activity are met.
Jerome B. Grubart, Inc. v. Great Lakes Dredge and Dock Co., ___
U.S. ___, 115 S. Ct. 1043, 1048 (1995). A plaintiff must show a
potentially disruptive impact on maritime commerce as well as a sub-
stantial relationship to traditional maritime activity in order to satisfy
the second criterion. Id. In the present matter, the district court prop-
erly summarized the applicable analysis:

          [T]he inquiry whether a tort has occurred within the admi-
          ralty jurisdiction requires the application of two tests-- the
          "locality" test and the "maritime nexus" or "connection" test,
          which itself calls for a two-pronged inquiry-- (i) what is
          [the] general character of activity giving rise to [the] inci-
          dent and (ii) does it have a substantial relationship to tradi-
          tional maritime activity.

The court then found that the requisite maritime connection was miss-
ing and granted the Lewises' motion to dismiss for lack of subject
matter jurisdiction. Assuming the truth of the material facts alleged
in the complaint as we must, we review the district court's dismissal
de novo. White v. United States, 53 F.3d 43, 44-45 (4th Cir. 1995).

Because the locality test was clearly met by Elizabeth's injury in
navigable waters, see Grubart, 115 S. Ct. at 1048 (stating that the tort
must occur on navigable waters, or if suffered on land, be caused by
a vessel on navigable water); White, 53 F.3d at 46-47 (applying the
test), we turn our attention to the question of maritime nexus. Even
assuming that the incident was one that had the potential to disrupt
maritime commerce if it occurred during a time of high commercial
traffic or in a heavily-traveled thoroughfare, see Grubart, 115 S. Ct.

                     3
at 1051 (describing the relevant inquiry as whether the general fea-
tures of the mishap place it within a class of incidents that pose more
than a fanciful risk to commercial shipping); see also Foremost Ins.
Co. v. Richardson, 457 U.S. 668, 675 (1982) (finding that even a col-
lision between two pleasure boats on a small Louisiana river that saw
little or no commercial traffic could potentially disrupt commercial
activity), we cannot conclude that the event bears a substantial rela-
tionship to traditional maritime activity.

Elizabeth's dive into the water in order to swim, of itself, was not
enough to create such a significant relationship. Grubart, 115 S. Ct.
at 1051 (stating that the relationship between swimming and tradi-
tional maritime activity is "too attenuated" to compel admiralty rules).
In ruling that admiralty jurisdiction did not extend to a claim brought
by a pleasure boat guest who injured himself when he dove from the
boat into navigable waters and struck the bottom, we concluded:

          Reduced to its essence, this case is about swimming and
          diving, and an unfortunate accident that resulted in the
          course of a recreational outing. . . . It is not about piloting,
          shipping, or navigational error, or other aspects of tradi-
          tional maritime activity. There is simply no predicative rela-
          tionship upon which an otherwise typical tort claim may
          properly be described as relating to "matters with which
          admiralty is basically concerned."

Foster v. Peddicord, 826 F.2d 1370, 1376 (4th Cir. 1987), cert.
denied, 484 U.S. 1027 (1988). The same is true when the wave runner
is regarded as a vessel and Lucy as its captain. Elizabeth was engaged
in recreational diving and swimming. She was not injured in a colli-
sion with the wave runner, see Oliver by Oliver v. Hardesty, 745 F.2d
317, 320 (4th Cir. 1984) (finding admiralty jurisdiction exists over a
claim arising from a collision between a swimmer and a pleasure boat
because the claim rested on an allegation of negligent navigation of
the boat), or an attempt to climb aboard it, see White, 53 F.3d at 48
(holding that admiralty jurisdiction extends to a claim of injury while
disembarking a vessel docked in navigable waters). It stretches reality
to believe that Elizabeth's plan to board the wave runner--assuming
that was the purpose of her dive--was sufficient to create a substan-
tial relationship to traditional maritime activity. See Grubart, 115 S.

                    4
Ct. at 1051 (explaining that the pertinent inquiry is whether the gen-
eral character of the activity giving rise to the incident is so closely
related to traditional maritime activity that it requires the application
of admiralty rules).

The district court's dismissal for lack of subject matter jurisdiction
is, accordingly,

AFFIRMED.

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