                                     PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                _____________

                   No. 15-3635
                  _____________

                 GREG HARGUS

                         v.

       FEROCIOUS AND IMPETUOUS, LLC;
      KYLE COLEMAN; JOSEPH TRATTNER;
     ST. THOMAS SPORT AND SOCIAL CLUB;
               M/V ONE LOVE

           Kyle Coleman; M/V One Love,
                                Appellants
                  _____________

         On Appeal from the District Court
                  of the Virgin Islands
             (D.V.I. No. 3-13-cv-00111)
        District Judge: Honorable Ruth Miller
                   ______________

               Argued May 19, 2016
                 ______________

Before: FUENTES, VANASKIE, and RESTREPO, Circuit
                    Judges
                       (Filed: October 18, 2016)

Matthew J. Duensing        [ARGUED]
5060 Fort Straede, Electra House, P.O. Box 6785
St. Thomas, United States Virgin Islands 00802
       Counsel for Appellants

                             ___________

                              OPINION
                             ___________

VANASKIE, Circuit Judge.

       Appellants Kyle Coleman and the M/V One Love (the
“One Love”)1 appeal the District Court’s judgment in favor of
Appellee Greg Hargus on his negligence claim following a
bench trial. For the reasons discussed below, we conclude
that the tortious act giving rise to Hargus’ claim was
insufficient to invoke maritime jurisdiction because the act
was not of the type that could potentially disrupt maritime
commerce. Therefore, the District Court lacked subject
matter jurisdiction over Hargus’ personal injury claim.
Accordingly, we will vacate the judgment of the District
Court and remand the matter with instructions that the District
Court dismiss the case.




          1
              The One Love is a twenty-six foot recreational
vessel.




                                   2
                              I.

       On May 19, 2012, Hargus and a group of individuals
rented the One Love to travel from St. Thomas to various
destinations throughout the United States Virgin Islands.2
Ferocious and Impetuous, LLC (“F&I”) owned the One Love
and had hired Coleman as a captain. One of the stops on the
tour was Cruz Bay, St. John, where Coleman anchored the
One Love in “knee deep” water close to the shore. (App. 30,
271.) Most of the passengers then disembarked from the One
Love. Later in the day, two members of the group—who
were standing on the beach approximately 25 feet away from
the One Love—threw beer cans at Hargus while he was
standing on the deck of the anchored One Love. Upon seeing
this, Coleman, who was standing on the beach next to the
other two individuals, threw an empty insulated plastic coffee
cup at Hargus. The plastic cup hit Hargus in the temple on
the left side of his head. Hargus, however, did not lose
consciousness and did not complain of any injury at that time.
One Love resumed its journey without further incident.
       On May 21, 2012, two days after the incident, Hargus,
who had experienced pain and vision impairments after being
hit by the coffee cup, sought medical attention. He was
diagnosed with a concussion and a mild contusion.3 The
treating physician did not prescribe any medication and



      2
        The factual recitation is based largely upon the
Findings of Fact made by the District Court following the
Bench Trial. (App. 29-33.)
      3
        Hargus had a history of head trauma, having
previously suffered 10 to 12 head injuries or concussions.




                              3
allowed Hargus to return to work that day without
restrictions.

       Hargus did not seek further medical treatment until
more than a year later. From June of 2013 until October of
2013, he was examined by at least three doctors for
complaints of headaches, memory loss, mood swings, and
neck pain. He last sought treatment for his headaches and
other symptoms in October of 2013.

       On November 20, 2013, Hargus filed the instant
lawsuit in the District Court of the Virgin Islands against
Coleman, F&I, Joseph Trattner (owner of F&I), Brent
Hazzard, St. Thomas Sport and Social Club, and the One
Love, in rem. In his Amended Complaint, Hargus asserted
five claims: (1) a maritime lien against the One Love; (2)
negligence and negligent entrustment against F&I, Trattner,
Hazzard, and the St. Thomas Sport and Social Club; (3)
negligence against Coleman; and (5) vicarious liability
against F&I, Trattner, Hazzard, and the St. Thomas Sport and
Social Club. The District Court held a two-day bench trial on
Hargus’ claims on February 24 and 25, 2015.

        On September 30, 2015, the District Court issued its
opinion, explaining that it had admiralty jurisdiction over
Hargus’ claims because “[c]laims such as these for personal
injury to the passenger of a vessel caused by the captain of
the vessel meet the situs and nexus requirements for admiralty
tort jurisdiction of this Court.” (App. 44.) The District Court
further concluded that Coleman was negligent and that the
One Love was jointly and severally liable in rem. However,
the District Court found that F&I and Trattner were not liable
for negligence or negligent entrustment and were not
vicariously liable. Thereafter, the District Court entered




                              4
judgment in favor of Hargus and against Coleman and the
One Love, jointly and severally, in the amount of $50,000.
Coleman and the One Love timely filed this appeal.4

                              II.

       We have appellate jurisdiction to review a final order
of the District Court under 28 U.S.C. § 1291. We exercise de
novo review over the District Court’s determination of its
own admiralty jurisdiction. Maher Terminals, LLC v. Port
Auth. of N.Y. & N.J., 805 F.3d 98, 104 (3d Cir. 2015);
Sinclair v. Soniform, Inc., 935 F.2d 599, 601 (3d Cir. 1991).

        Under the United States Constitution, the federal
judicial power encompasses “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). “The fundamental
interest giving rise to maritime jurisdiction is ‘the protection
of maritime commerce.’” Sisson v. Ruby, 497 U.S. 358, 367
(1990) (quoting Foremost Ins. Co. v. Richardson, 457 U.S.
668, 674 (1982)).

        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 &

       4
         It bears noting that no entry of appearance was made
on behalf of Hargus. Nor was a brief filed on his behalf and
neither Hargus nor an attorney acting on his behalf
participated in oral argument.




                               5
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, 497 U.S. at 363, 364 n.2). 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.

        Here, even assuming the location test is satisfied, we
find that admiralty jurisdiction is lacking because the first
prong of the connection test is not met. The first prong of the
connection test analyzes whether “the general features of the
type of incident involved” have “a potentially disruptive
impact on maritime commerce.” Id. (quoting Sisson, 497
U.S. at 363, 364 n.2). This analysis 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 538–39. In so doing, we must describe the
incident “at an intermediate level of possible generality.” Id.
at 538. The purpose of this exercise is to ascertain “whether
the incident could be seen within a class of incidents that
posed more than a fanciful risk to commercial shipping.” Id.
at 539.

        Several cases illustrate the proper analysis. In Sisson,
a fire broke out on a recreational vessel that was docked at a




                               6
marina, destroying that vessel and damaging several
recreational vessels nearby and the marina. 497 U.S. at 360.
The Supreme Court described the incident as “a fire on a
vessel docked at a marina on navigable waters,” and
concluded that this type of incident has the potential to
disrupt maritime commerce because the fire could have
spread to a nearby commercial vessel or made the marina
inaccessible for commercial vessels. Id. at 362-63.

        Likewise, in Grubart, a construction company that was
using a crane on a barge in the Chicago River allegedly
cracked a freight tunnel running under the river, causing
water to pour into the tunnel and flood buildings downtown.
513 U.S. at 530. The Supreme Court described that incident
as “damage by a vessel in navigable water to an underwater
structure,” and concluded that this type of incident has the
potential to disrupt maritime commerce because it “could lead
to a disruption in the water course itself” or “could lead to
restrictions on the navigational use of the waterway during
required repairs.” Id. at 539; see also Foremost Ins. Co., 457
U.S. at 675 (describing a collision between two pleasure boats
as “a collision between boats on navigable water” and
concluding that such an incident has the potential to disrupt
maritime commerce because a collision between boats in an
area with heavy commercial boat traffic would have a
“substantial effect on maritime commerce”); id. at 675 n.5
(explaining that, in Executive Jet Aviation, Inc. v. City of
Cleveland, 409 U.S. 249 (1972), the Supreme Court
concluded that a plane crashing into the water had the
potential to disrupt maritime commerce because “an aircraft
sinking in the water could create a hazard for the navigation
of commercial vessels in the vicinity”).




                              7
       On the other hand, in Tandon v. Captain’s Cove
Marina of Bridgeport, Inc., 752 F.3d 239 (2d Cir. 2014), the
court concluded that a brawl on a permanent floating dock
between passengers of two boats did not have the potential to
disrupt maritime commerce. In that case, two separate groups
of individuals (the “Tandon group” and the “Genna group”)
traveled by separate boats to a marina restaurant for dinner
and drinks. Id. at 241. As both groups left the restaurant and
boarded their boats, a member of the Tandon group fell into
the water. Id. Members of the Genna group laughed at the
mishap, leading members of the Tandon group to yell
unspecified comments in response. Id. Both groups then
proceeded by boat to the South Dock—a floating dock
accessible only by water—and docked their respective
vessels. Id. at 242. Once both groups disembarked from their
vessels onto the South Dock, a fistfight broke out, during
which one member of the Genna group was knocked off the
South Dock and into the water. Id. The individual also
alleged that he was then held underwater to the point of
asphyxia and suffered severe injuries as a result. Id.

       In analyzing the potential for this type of incident to
disrupt maritime commerce, the Second Circuit described the
incident as “a physical altercation among recreational visitors
on and around a permanent dock surrounded by navigable
water.” Id. at 249. The Court explained that, unlike Grubart,
this type of incident cannot disrupt navigation because “it
does not create any obstruction to the free passage of
commercial ships along navigable waterways. Nor can it lead
to a disruption in the course of the waterway itself.” Id.
Furthermore, the Court noted that, unlike Sisson, this incident
“cannot immediately damage nearby commercial vessels” and
“threatens only its participants.” Id. Moreover, the Court




                              8
found that because the incident did not occur while the parties
were at sea, the incident could not “distract the crew from
their duties, endangering the safety of the vessel and risking
collision with others on the same waterway” or force the
vessel “to divert from its course to obtain medical care for the
injured person.” Id. at 250. Finally, the Court noted that the
injured individual was not “employed in maritime
commerce.” Id. Accordingly, the Second Circuit concluded
that “this type of incident does not realistically pose a threat
to maritime commerce.” Id. at 249.

        Here, the activity in question can be described as
throwing a small inert object from land at an individual
onboard an anchored vessel. Like the fistfight in Tandon, we
find that this type of incident “does not realistically pose a
threat to maritime commerce.” Id. First, unlike damage to an
underwater structure, see Grubart, 513 U.S. at 538–39, or a
collision between two vessels, see Foremost Insurance Co.,
457 U.S. at 675, throwing an inert object from land onto an
anchored vessel does not create any potential for disrupting
the course of the waterway or obstructing the free passage of
commercial ships on the waterway. Second, unlike a fire on a
marina, see Sisson, 497 U.S. at 363, or a plane crashing into
the water, see Foremost Insurance Co., 457 U.S. at 675 n.5,
throwing an inert object from land onto an anchored vessel
has no potential to damage nearby commercial vessels.

       In sum, throwing an object like a coffee cup from land
at an individual standing on an anchored vessel does not
threaten a disruptive effect on maritime commerce because it
does not have the potential of disrupting navigation,
damaging nearby commercial vessels, or causing a
commercial vessel to divert from its course. Accordingly,
Hargus’ claims do not satisfy the first prong of the two-prong




                               9
connection test, rendering the invocation of federal admiralty
jurisdiction inappropriate.

                             III.

      For the foregoing reasons, we will vacate the District
Court’s judgment of September 30, 2015 and remand the
matter with instructions that the District Court dismiss the
case.




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