                                       PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                ____________

                     No. 16-1772
                    ____________

    IN THE MATTER OF THE COMPLAINT OF
CHRISTOPHER COLUMBIS, LLC, (t/a BEN FRANKLIN
      YACHT), AS OWNER OF THE VESSEL
           BEN FRANKLIN YACHT,
         FOR EXONERATION FROM OR
          LIMITATION OF LIABILITY


                Christopher Columbus, LLC,
                                   Appellant

                    ____________

    On Appeal from the United States District Court
       for the Eastern District of Pennsylvania
            (E.D. Pa. No. 2-14-cv-00214)
     District Judge: Honorable Edward G. Smith
                    ____________
                 Argued March 7, 2017
    Before: HARDIMAN, KRAUSE, Circuit Judges, and
             STENGEL, Chief District Judge.*

                 (Filed: September 25, 2017)


Daniel H. Wooster [Argued]
Michael B. McCauley
Palmer Biezup & Henderson LLP
190 N. Independence Mall West, Suite 401
Philadelphia, PA 19106
      Counsel for Appellant

Stanley B. Gruber [Argued]
Freedman & Lorry, P.C.
1601 Market Street, Suite 1500
Philadelphia, PA 19103

Michael T. van der Veen
Law Offices of Michael T. van der Veen
1219 Spruce Street
Philadelphia, PA 19107
      Counsel for Appellee Michael Bocchino




       *
         The Honorable Lawrence F. Stengel, United States
District Court for the Eastern District of Pennsylvania, sitting
by designation. The Honorable Lawrence F. Stengel assumed
Chief Judge status on August 1, 2017.




                               2
William J. Fox
1219 Spruce Street
Philadelphia, PA 19107
      Counsel for Appellees James McHugh, Evan Medwid
      and Alexander Morella
                      ____________

                 OPINION OF THE COURT
                      ____________

STENGEL, Chief District Judge.

        Christopher Columbus, LLC appeals the District
Court’s dismissal of its limitation action, brought pursuant to
the Limitation of Vessel Owner’s Liability Act, 46 U.S.C. §
30511. Christopher Columbus filed this action after Appellee
Michael Bocchino filed a negligence lawsuit against it in the
Philadelphia Court of Common Pleas. Both of these actions
arise out of a drunken brawl which erupted among passengers
who were enjoying a cruise on the Delaware River onboard the
vessel Ben Franklin Yacht. Following a hearing on the issue of
subject-matter jurisdiction in the limitation action, the District
Court found that maritime jurisdiction was lacking and
dismissed the limitation action. For the reasons that follow, we
find there is maritime jurisdiction over the dispute, and we will
therefore vacate the District Court’s dismissal of the limitation
action.

I      Background

       Christopher Columbus owns and operates the passenger
vessel “Ben Franklin Yacht,” which provides cruise services




                                3
on the Delaware River.1 The Ben Franklin Yacht, which is over
eighty feet long and has three passenger decks, departs from
and docks at Pier 24, located at 401 North Columbus
Boulevard in Philadelphia, Pennsylvania. Pier 24 is located just
north of the Ben Franklin Bridge and is adjacent to the main
shipping channel of the Delaware River.

       Bocchino was a patron on a cruise on the Ben Franklin
Yacht on May 3, 2013. Bocchino was apparently “assaulted on
the vessel and/or in the parking lot near the dock where the Ben
Franklin Yacht was moored by ‘unknown patrons of the cruise
and/or agents, servant[s], workmen and/or employees’” of
Christopher Columbus. App. 47a. Bocchino filed a complaint
against the Ben Franklin Yacht and others in the Court of
Common Pleas for Philadelphia County, alleging claims for
negligence, negligent infliction of emotional distress, assault,
and punitive damages. Christopher Columbus then filed its
Complaint for Exoneration From or Limitation of Liability in
federal court (“the limitation action”). Bocchino and three
additional passengers on the May 3, 2013 cruise asserted
claims in the limitation action, alleging that (1) while
passengers for hire on the Ben Franklin Yacht, they were
assaulted and injured by fellow passengers,2 and (2) the
vessel’s crewmembers caused these injuries by providing

       1
        The Ben Franklin Yacht is documented by the United
States Coast Guard to carry paying passengers on cruises.
       2
         Bocchino claimed to have been assaulted while aboard
the vessel and in the parking lot on the pier, while the other
three claimants alleged that they were assaulted on the vessel.




                               4
inadequate security and overserving alcohol to passengers. The
claimants asserted that the assaults began while they were still
onboard the vessel and while the vessel was in the process of
berthing at Pier 24.

        While cross-motions for summary judgment were
pending, the District Court sua sponte ordered argument and
invited briefing on the issue of subject-matter jurisdiction.
After hearing oral argument, the District Court determined that
the test for maritime jurisdiction had not been met and
dismissed the limitation action for lack of subject-matter
jurisdiction. For the reasons discussed below, we will reverse.

II     Jurisdiction and Standard of Review

      We have jurisdiction over this appeal under 28 U.S.C. §
1291. We review de novo a district court’s determination of its
own admiralty jurisdiction.3 Hargus v. Ferocious &

       3
         This appeal comes to us in a somewhat unusual posture
for a determination of admiralty jurisdiction. It is more often
the case that the question of whether admiralty jurisdiction
applies to a particular dispute is raised at the outset, and is
therefore answered on the basis of the allegations in the
pleadings. See, e.g., Maher Terminals, LLC v. Port Auth. of
N.Y. & N.J., 805 F.3d 98, 104 (3d Cir. 2015). At the initial
stages of litigation in this case, both sides agreed that there was
subject-matter jurisdiction. It was only later, after the District
Court had been presented with the parties’ summary judgment
motions and their competing sets of disputed facts taken from
a developed evidentiary record, that the District Court
questioned whether there was admiralty jurisdiction in this
case. The nature of the “attack” on jurisdiction was, therefore,
factual rather than facial. See, e.g., Constitution Party of Pa. v.



                                5
Impetuous, LLC, 840 F.3d 133, 135 (3d Cir. 2016) (citing
Maher Terminals, LLC v. Port Auth. of N.Y. & N.J., 805 F.3d
98, 104 (3d Cir. 2015) and Sinclair v. Soniform, Inc., 935 F.2d
599, 601 (3d Cir. 1991)).

III    Discussion

      Christopher Columbus raises three principal arguments
on appeal, but we address only the first:4 whether the District

Aichele, 757 F.3d 347, 358 (3d Cir. 2014) (distinguishing facial
attacks on jurisdiction from factual attacks). Thus, while the
issue did not arise in the context of a motion to dismiss, it is
akin to a factual attack which “is an argument that there is no
subject matter jurisdiction because the facts of the case—and
here the District Court may look beyond the pleadings to
ascertain the facts—do not support the asserted jurisdiction.”
Id. Accordingly, when assessing our subject-matter
jurisdiction over Christopher Columbus’s limitation action, we
rely on the undisputed facts drawn from the summary judgment
record. See id. (discussing “the standard of review applicable
to a factual attack, in which a court may weigh and ‘consider
evidence outside the pleadings.’”) (quoting Gould Elecs. Inc.
v. United States, 220 F.3d 169, 176 (3d Cir. 2000)); see also
Hartig Drug Co. Inc. v. Senju Pharm. Co., 836 F.3d 261, 268
(3d Cir. 2016) (explaining that a factual attack on subject-
matter jurisdiction “strips the plaintiff of the protections and
factual deference provided under 12(b)(6) review.”) (citing
Davis v. Wells Fargo, 824 F.3d 333, 348–50 (3d Cir. 2016)).
       4
        Because we find that the test for admiralty jurisdiction
pursuant to 28 U.S.C. § 1333(1) is satisfied, we need not
address Christopher Columbus’s second and third issues on
appeal: that the District Court erred in finding that the



                               6
Court erred in finding that the alleged incident aboard the Ben
Franklin Yacht had insufficient potential to disrupt maritime
commerce, and that therefore admiralty jurisdiction pursuant
to 28 U.S.C. § 1333(1) was lacking. Appellee Michael
Bocchino did not file a cross-appeal, so we do not address his
contention that the District Court erred in dismissing his
summary judgment motion as moot.5


Extension of Admiralty Jurisdiction Act, 46 U.S.C. § 30101(a),
did not confer an independent basis for jurisdiction; and that
the District Court erred in finding that the Limitation of Vessel
Owner’s Liability Act, 46 U.S.C. § 30501, et seq., did not
confer an independent basis for jurisdiction.
       5
          Bocchino asserts that the entirety of the District
Court’s Dismissal Order is now before us for review because
Christopher Columbus did not limit its Notice of Appeal to the
portion of the Order dismissing the case for lack of subject-
matter jurisdiction. He therefore urges us to consider whether
his motion for summary judgment should have been granted,
instead of being denied as moot, in light of what he contends
are undisputed facts showing that he is entitled to summary
judgment in the limitation action, so that he may then proceed
in state court with his negligence action.

       We have previously said that “an appellee may, without
taking a cross-appeal, support the judgment as entered through
any matter appearing in the record, though his argument may
attack the lower court’s reasoning or bring forth a matter
overlooked or ignored by the court.” EF Operating Corp. v.
Am. Bldgs., 993 F.2d 1046, 1048 (3d Cir. 1993) (citations
omitted).




                               7
        Under the United States Constitution, the federal courts
have the power to hear “all Cases of admiralty and maritime
Jurisdiction.” U.S. Const. art. III, § 2, cl. 1. Congress codified
that jurisdiction at 28 U.S.C. § 1333(1), which provides that
federal district courts have original jurisdiction over “[a]ny
civil case of admiralty or maritime jurisdiction.” 28 U.S.C. §
1333(1). As noted in our recent decision in Hargus v.
Ferocious & Impetuous, LLC, “[t]he fundamental interest


        Here, Bocchino does not seek to support the District
Court’s decision to dismiss for lack of subject-matter
jurisdiction, or its denial of the summary judgment motions as
moot, through alternative grounds. Instead, he seeks to have
his summary judgment motion granted on the merits, so that
the limitation action can be dismissed and the case can be
remanded to state court for a jury trial. In other words, he asks
that, if we reverse the District Court on the issue of subject-
matter jurisdiction, we decide the merits of his summary
judgment motion in his favor. Seeking this form of relief, in
light of the procedural history of this case, requires a cross-
appeal. See EF Operating Corp., 993 F.2d at 1048–49
(reasoning that “[a] grant of summary judgment and a
dismissal for lack of personal jurisdiction . . . are wholly
different forms of relief. The latter is a dismissal without
prejudice, whereas the former is a ruling on the merits which if
affirmed would have preclusive effect” and holding that a
cross-appeal was required) (citation omitted). Accordingly,
because Bocchino did not file a cross-appeal, we will not
consider in the first instance his argument that summary
judgment should have been entered in his favor, and leave it to
the District Court to address the merits of that motion on
remand.




                                8
giving rise to maritime jurisdiction is ‘the protection of
maritime commerce.’” 840 F.3d at 136 (quoting Sisson v.
Ruby, 497 U.S. 358, 367 (1990) (citation omitted)).

       With respect to maritime tort claims, the test for
determining admiralty jurisdiction concerns both the incident’s
location and its connection with maritime activity:

       When a party seeks to invoke federal admiralty
       jurisdiction over a tort claim, the claim “must
       satisfy conditions both of location and of
       connection with maritime activity.” Jerome B.
       Grubart, Inc. v. Great Lakes Dredge & Dock
       Co., 513 U.S. 527, 534 (1995)). The location
       aspect is satisfied if “the tort occurred on
       navigable water” or the “injury suffered on land
       was caused by a vessel on navigable water.” Id.
       The connection aspect is a conjunctive two-part
       inquiry. First, we “must ‘assess the general
       features of the type of incident involved’ to
       determine whether the incident has ‘a potentially
       disruptive impact on maritime commerce.’” Id.
       (quoting Sisson v. Ruby, 497 U.S. 358, 363, 364
       n.2 (1990)). Second, we “must determine
       whether ‘the general character’ of the ‘activity
       giving rise to the incident’ shows a ‘substantial
       relationship to traditional maritime activity.’” Id.
       (quoting Sisson, 497 U.S. at 364 n.2, 365).
       Federal admiralty jurisdiction is only proper
       when the location test and both prongs of the
       connection test are satisfied. Id.

Hargus, 840 F.3d at 136.




                                9
        As Bocchino concedes, the location aspect of the
jurisdictional test is satisfied because the alleged tort occurred
on the Delaware River. Bocchino also concedes that the second
part of the connection test is satisfied, because carrying
passengers for hire on a vessel on navigable waters is
substantially related to traditional maritime activity. Thus, our
analysis of whether there is admiralty jurisdiction in this case
is focused on the first part of the connection test: an assessment
of the general features of the incident, and whether such an
incident has the potential to disrupt maritime commerce.

        The United States Supreme Court has instructed courts
to “assess the general features of the type of incident involved
to determine whether such an incident is likely to disrupt
commercial activity.” Sisson, 497 U.S. at 363. Such an
assessment “turns . . . on a description of the incident at an
intermediate level of possible generality.” Jerome B. Grubart,
Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 538
(1995). As discussed in our decision in Hargus, Sisson and
Grubart provide illustrative examples of how the specific
factual details of an incident may be distilled into a description
of the general character of that incident.

       In Sisson, a fire started in the washer/dryer area of a
pleasure yacht docked at a marina on Lake Michigan, which
destroyed the yacht and damaged several other vessels as well
as the marina. 497 U.S. at 360. For connection test purposes,
the Court described the incident as “a fire that began on a
noncommercial vessel at a marina located on a navigable




                               10
waterway.”6 Id. at 362. In Grubart, the Court considered an
incident where “flooding [of basements in downtown Chicago
allegedly] resulted from events several months earlier, when .
. . Great Lakes Dredge and Dock Company had used a crane,
sitting on a barge in the river next to a bridge, to drive piles
into the riverbed above the tunnel.” Grubart, 513 U.S. at 529.
There, the Court described the incident as “damage by a vessel
in navigable water to an underwater structure.” Id. at 539.

       Our own maritime tort jurisprudence is also instructive
when crafting “general features” descriptions for purposes of
applying the connection test to a particular set of facts. For
example, in Neely v. Club Med Management Services, Inc., we
considered a scenario where a scuba-diving instructor and
vessel crewmember was injured after being hit by a dive boat’s
propellers while she was out with resort patrons. 63 F.3d 166,
170 (3d Cir. 1995) (en banc). The description we chose for
purposes of determining jurisdiction was “damage by a vessel
in navigable water to [a seaman].” Id. at 179 (alteration in
original). Most recently, in Hargus, we were presented with a
case where the captain of the vessel One Love threw an empty
insulated coffee cup from the beach that hit a passenger
standing on the One Love, which at the time was anchored in
knee-deep water approximately twenty-five feet away.
Hargus, 840 F.3d at 134–35. We described that activity as
“throwing a small inert object from land at an individual
onboard an anchored vessel.” Id. at 137.



       6
        In a subsequent case, the Court referred to the incident
in Sisson as “the burning of docked boats at a marina on
navigable waters.” Grubart, 513 U.S. at 533–34.




                              11
        In formulating a general features description in this
case, we are mindful of the Supreme Court’s caution to avoid
descriptions that are “too general” such that they cannot be
useful in comparing cases, or descriptions that are overly
specific such that they would ignore an incident’s capacity to
have an effect on maritime commerce. See Grubart, 513 U.S.
at 538–39 (discussing the incident in Sisson and observing that
“[t]o speak of the incident as ‘fire’ would have been too general
to differentiate cases; at the other extreme, to have described
the fire as damaging nothing but pleasure boats and their tie-
up facilities would have ignored, among other things, the
capacity of pleasure boats to endanger commercial shipping
that happened to be nearby.”). Rather, we must look at the facts
of this case and formulate a description that will enable us to
determine “whether the incident could be seen within a class
of incidents that posed more than a fanciful risk to commercial
shipping.” Id. at 539. Applying these principles, we hold that
the incident at issue here is best described as “an altercation
between passengers on a boat in the process of docking.” 7

       7
         Taking the disputed and undisputed facts into account,
the District Court concluded that “the fight, if one occurred,
erupted toward the end of the cruise.” App. 9a–10a. The degree
to which the Ben Franklin Yacht had completed docking was
unclear as a result of conflicting deposition testimony from
crewmembers and the claimants. The District Court
specifically noted the following factual disputes: whether the
vessel was docking or docked when the altercation occurred;
the magnitude of the altercation and the total number of
passengers involved, which was allegedly as many as forty to
forty-five passengers; whether and when members of the crew
became involved in resolving the altercation; and whether
passengers left the vessel on their own or with the assistance of



                               12
Describing the incident this way captures the general nature of
the tort and its attendant circumstances without being too
generic or too specific.8 Grubart, 513 U.S. at 538–39.


the vessel’s employees and crew. Thus, although it is not
possible to ascertain the location of the vessel relative to the
pier on the summary judgment record before us, such a precise
determination is unnecessary to resolve the question of subject
matter jurisdiction. For purposes of crafting a general features
description to which the connection test may be applied, we
need only state that the vessel was “in the process of docking”
while the altercation was occurring.
       8
          After reviewing and comparing the witnesses’
recollections and setting forth the parties’ respective versions
of the disputed facts based on the summary judgment record,
the District Court concluded that the incident “should be
described as something like a physical altercation among
recreational passengers on board a vessel that is in the
immediate process of docking.” App. 23a. We respectfully
disagree with the District Court’s formulation of a general
features description, as it is too specific in the following three
ways: first, a verbal altercation arising at an inopportune time
could be as distracting to the crew as a physical altercation;
second, the fact that the passengers are “recreational” is not a
determinative factor for admiralty jurisdiction, so long as the
activity underlying the incident has a “substantial relationship
to a ‘traditional maritime activity,’” Sisson, 497 U.S. at 365;
and third, the “immediacy” of the Ben Franklin Yacht’s
docking at the time the altercation started is not clear from the
record. For these reasons, we have chosen the slightly more
generalized description set forth above.




                               13
        Having crafted our description of the general features of
the incident in this case, we must now “ascertain ‘whether the
incident could be seen within a class of incidents that posed
more than a fanciful risk to commercial shipping.’” Hargus,
840 F.3d at 136 (quoting Grubart, 513 U.S. at 539). We turn
to the first prong of the connection test, which “requires us to
assess the ‘potential’ disruptive effects that the type of incident
involved could have on maritime commerce, not whether the
particular incident at hand actually disrupted maritime
commerce.” Id. at 136 (quoting Grubart, 513 U.S. at 538–39).
A brief review of our discussion in Hargus illustrates the type
of factors to consider when assessing an incident’s potential to
disrupt maritime commerce.

        In Hargus, we discussed Tandon v. Captain’s Cove
Marina of Bridgeport, Inc., a Second Circuit case which
involved an injury to passengers that did not have the potential
to disrupt maritime commerce. Hargus, 840 F.3d at 137 (citing
Tandon, 752 F.3d 239, 249 (2d Cir. 2014)). The Second Circuit
described the general features of the incident as “a physical
altercation among recreational visitors on and around a
permanent dock surrounded by navigable water.” Tandon, 752
F.3d at 249. The court found that the incident did not have the
potential to disrupt maritime commerce because it
“threaten[ed] only its participants,” could not “create any
obstruction to the free passage of commercial ships along
navigable waterways” or “lead to a disruption in the course of
the waterway itself,” and could not “immediately damage
nearby commercial vessels.” Id. In addition, because the
incident did not occur at sea, it “could not ‘distract the crew
from their duties, endangering the safety of the vessel and
risking collision with others on the same waterway,’” nor could
it “force the vessel ‘to divert from its course to obtain medical




                                14
care for the injured person,’” who “was not ‘employed in
maritime commerce.’” Hargus, 840 F.3d at 137 (quoting
Tandon, 752 F.3d at 250). The Second Circuit was careful to
note that “the class of incidents we consider here includes only
fights on permanent docks . . . . This type of incident does not
pose the same risks to maritime commerce as a fistfight
occurring on a vessel on navigable water.” Tandon, 752 F.3d
at 250. This was so, in part because “[a] fight on a vessel may
distract the crew from their duties, endangering the safety of
the vessel and risking collision with others on the same
waterway.” Id.

        Similar assessments in this case lead us to conclude that
an altercation between passengers on a boat in the process of
docking has the potential to disrupt maritime commerce.
Although the record is unclear about the location of the vessel
when the fight broke out, how many people were involved in
the fight, and the crew’s involvement, if any, in stopping the
fight, there are numerous scenarios that could result from a
passenger altercation, each of which poses more than a fanciful
risk to maritime commerce. First, this type of incident has the
potential to distract the captain or crew during the docking
procedure, which could have resulted in the vessel crashing
into or in some way colliding with the pier, causing damage to
the vessel or to the pier. Depending on the degree of damage
to the pier, it could be rendered unusable. Second, a mishap
during docking also has the potential to cause injuries to
passengers or the crew, the latter of which could leave the
vessel unable to dock at the pier. Such injuries could require a
rescue of those on board, which might then lead to a Coast
Guard investigation. Finally, if the crew was sufficiently
sidetracked by the altercation and unable to execute the
docking maneuver, the vessel could be forced back out on the




                               15
waterway with a veritable riot among the passengers. That
would certainly be distracting to the captain and crew, and also
pose a risk to nearby vessels. Any of these outcomes were
possible, and all have the potential to disrupt maritime
commerce.

        Bocchino’s argument to the contrary is not persuasive.
He asserts that, due to the nature of the finger pier where the
Ben Franklin Yacht docks, the vessel was not in open waters
during the altercation, and thus could not encounter other
vessels or block their navigation, cause a disruption on the
waterway, or cause any immediate damage to other vessels
while docking because it was in an isolated location. This
argument has two flaws. First, it depends in part on the overly-
specific “general features” description Bocchino proposes,
which characterizes Pier 24 as an “isolated location.” Bocchino
Br. 18 n.4. Second, it focuses on what did not actually happen
to the Ben Franklin Yacht as a result of the altercation taking
place while the vessel was in the process of docking, rather
than what could have happened. As previously stated, the
connection test requires us to “assess the ‘potential’ disruptive
effects that the type of incident involved could have on
maritime commerce, not whether the particular incident at
hand actually disrupted maritime commerce.” Hargus, 840
F.3d at 136 (emphases added) (citing Grubart, 513 U.S. at
538–39); see also Tandon, 752 F.3d at 252 n.8 (noting that, to
the extent that the parties arguing in favor of maritime
jurisdiction rested their argument “on specific aspects of the
incident that actually occurred, [that argument] clearly fails,
because our analysis looks only to the general type of incident
at issue rather than particular facts about that incident.”) (citing
Grubart, 513 U.S. at 538). Had the altercation distracted the
crew or required their intervention during the docking




                                16
process—two very real possibilities—any damage to the vessel
or the pier that may have resulted could easily have caused a
disruption to maritime commerce.9 Hence, our conclusion that
the first prong of the connection test is met. As the other
aspects of the location and connection tests are satisfied, we
therefore hold that admiralty jurisdiction is appropriate in this
case.

                        *      *       *

       For the reasons stated, we will reverse the judgment of
the District Court and vacate its dismissal of the limitation
action. This case is remanded for further proceedings
consistent with this opinion.




       9
          We respectfully disagree with the District Court’s
assessment that, based on its view that the Ben Franklin Yacht
was in the immediate process of docking when the altercation
started, the risk of disrupting maritime commerce was merely
fanciful. The general features of this type of incident, which
are what we must consider for purposes of determining
jurisdiction, demonstrate that there is a potential for an
altercation between passengers on a boat in the process of
docking to disrupt maritime commerce, and that the potential
for disruption to maritime commerce is more than fanciful.




                               17
