The opinion of the court was delivered by: HAIGHT
HAIGHT, Senior District Judge :
This case presents the question whether a nondependent spouse of a cruise ship passenger injured on the high seas may recover nonpecuniary damages for loss of society and consortium in federal court.
Plaintiffs Charles and Shirley Friedman are husband and wife. They reside in New Jersey. In August 1994 plaintiffs were passengers on the cruise ship SEA GODDESS II, owned and operated by defendant Cunard Line Limited ("Cunard"). The cruise was between Mediterranean Sea ports. The vessel did not call at any American port.
Shirley Friedman retired from her occupation in 1988. Charles Friedman retired in 1993. They were both 73 years old at the time of the accident in suit.
On August 4, 1994, Shirley Friedman was injured when she fell while participating in an aerobics class being conducted in the vessel's main salon for the benefit and entertainment of the passengers. At the time of the accident the SEA GODDESS II was anchored on the high seas off the Greek island of Skiathos.
An employee of Golden Door, Inc., a health center operator under contract to Cunard, was conducting the aerobics class. Plaintiffs commenced this action against Cunard and Golden Door. In an opinion dated November 5, 1997, familiarity with which is assumed, the Court granted Golden Door's motion to dismiss the complaint as to it or lack of personal jurisdiction, and denied Cunard's motion for summary judgment on the issue of liability.
The case is now before the Court on Cunard's motion for partial summary judgment dismissing Charles Friedman's claims for loss of society and consortium damages. Shirley Friedman's claims for her injuries are not implicated by this motion. Cunard contends that Charles Friedman's nonpecuniary claims are not recoverable under the governing general maritime law as declared by federal courts.
The threshold question is whether American general maritime law governs the case, as Cunard claims. Plaintiffs say it does not because diversity of citizenship is the only basis for subject matter jurisdiction they pleaded in their complaint. When a federal court's subject matter jurisdiction depends solely upon diversity, the court follows the choice-of-law rules of the state in which it sits. Plaintiffs reason that this would lead to the application of either New York or New Jersey substantive law, which would support Charles Friedman's "claim for loss of society and consortium." Brief at 5.
I cannot accept that reasoning. Plaintiffs' pleading cannot control the question of subject matter jurisdiction. The existence vel non of admiralty jurisdiction in tort depends upon the circumstances of the incident, and controls the governing law. "With admiralty jurisdiction comes the application of substantive admiralty law. Absent a relevant statute, the general maritime law, as developed by the judiciary, applies. Drawn from state and federal sources, the general maritime law is an amalgam of traditional common-law rules, modifications of those rules, and newly created rules." East River Steamship Corp. v. Transamerica Delaval Inc., 476 U.S. 858, 864-65, 90 L. Ed. 2d 865, 106 S. Ct. 2295 (1986).
Where a tort falls within admiralty jurisdiction, the general maritime law applies, even if the plaintiff's complaint pleaded diversity of citizenship as the sole basis for subject matter jurisdiction. That is the holding of Wahlstrom v. Kawasaki Heavy Industries, Inc., 4 F.3d 1084 (2d Cir. 1993), cert. denied, 510 U.S. 1114, 114 S. Ct. 1060, 127 L. Ed. 2d 380 (1994), a wrongful death case arising out of a collision between vessels on a navigable waterway within Connecticut territorial waters. Although in their complaint plaintiffs, the parents of the decedent, based federal jurisdiction solely upon diversity of citizenship and sought damages pursuant to Connecticut law, the Second Circuit observed that a collision between vessels on navigable waters "comes within the admiralty jurisdiction of the federal courts," and that "with this jurisdiction comes the application of substantive maritime law, and absent a relevant federal statute, we apply the maritime law as developed by the courts." The Second Circuit proceeded to apply the general maritime law to the claims asserted in Wahlstrom, in derogation of Connecticut law. See also Carey v. Bahama Cruise Lines, 864 F.2d 201, 206 (1st Cir. 1988) (in suit for injury suffered by cruise ship passengers, "the mere fact that the plaintiffs invoked the diversity of citizenship jurisdiction of the district court does not preclude the application of maritime law.").
Seeking to avoid the general maritime law, plaintiffs at bar rely upon Fedorczyk v. Caribbean Cruise Lines, Ltd., 82 F.3d 69 (3d Cir. 1996). Plaintiff, a passenger on a cruise ship, slipped and fell while taking a shower in the bathtub in her cabin. She sued the shipowner for negligence, on the theory that there were insufficient abrasive strips on the floor of the tub to prevent her from slipping. Plaintiff, "neither [pleading] nor otherwise [invoking] the admiralty jurisdiction of the district court," filed her original complaint in a New Jersey state court; the shipowner "removed the case to federal district court on the basis of diversity jurisdiction." 82 F.3d at 73. Plaintiff did not amend her complaint to invoke admiralty jurisdiction. "The district court entered a pretrial order without objection from the parties stating that the jurisdictional predicate was diversity of citizenship," and "the parties agreed at oral argument [of defendant's motion for summary judgment] they are satisfied with the application of New Jersey state law. It is New Jersey law that we will apply." Id.
In other words, the Third Circuit regarded the plaintiffs as "the master of her complaint," 82 F.3d at 73, and allowed her to avoid the general maritime law, even though "admiralty jurisdiction apparently exists since the injury occurred on navigable waters, and the incident has a nexus to traditional maritime activity." Id. (internal quotation marks and citations omitted).
I think it is a doubtful proposition that parties, who cannot by their agreement vest a federal district court with subject matter jurisdiction that does not exist, can agree to divest the court of jurisdiction that unquestionably exists. If that is the Third Circuit's view, I am not bound by it. In any event, Fedorczyk is distinguishable on the facts from the case at bar, since unlike the compliant shipowner in that case, the defendant at bar pleaded in its answer that the general maritime law governed the parties' rights and obligations.
While a plaintiff may not be allowed to draft his pleading so as to oust the district court of admiralty jurisdiction otherwise present, it does not follow from that general proposition that the particular case falls within that jurisdiction. Accordingly it is necessary to consider whether the tort plaintiffs allege is "maritime" in nature.
Determination of the question whether "a tort is 'maritime' and thus within the admiralty jurisdiction of the federal courts has traditionally depended upon the locality of the wrong. If the wrong occurred on navigable waters, the action is within admiralty jurisdiction; if the wrong occurred on land, it is not." Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 253, 34 L. Ed. 2d 454, 93 S. Ct. 493 (1972). However, during more recent years, at least in respect of torts occurring on navigable waters within the United States, the Supreme Court has imposed an additional requirement "that the wrong must bear a significant relationship to traditional maritime activity." East River Steamship Corp., 476 U.S. at 864 (internal quotation marks omitted). The Supreme Court characterizes that requirement as one of a "maritime nexus," Id. ; the Second Circuit has used the words "situs" and "status" to characterize these two jurisdictional requirements. See Keene Corp. v. United States, 700 F.2d 836, 843 (2d Cir. 1983) ("Admiralty jurisdiction in tort exists when the wrong (1) took place on navigable waters ("situs") and (2) bears a significant relationship to traditional maritime activity ("status")."
In Executive Jet the Court declined to find the requisite maritime nexus in a case where a jet aircraft crash-landed and sank in the navigable waters of Lake Erie shortly after takeoff from a Cleveland airport. In Foremost Insurance Co. v. Richardson, 457 U.S. 668, 73 L. Ed. 2d 300, 102 S. Ct. 2654 (1982), the Court made it clear that the maritime nexus requirement articulated in Executive Jet was not limited to aviation tort cases; but Foremost Insurance found a sufficiently significant relationship to traditional maritime activity in a collision between two small pleasure boats on a river in Louisiana, notwithstanding the fact that neither boat was being used for commercial purposes. The Court explained:
In light of the need for uniform rules governing navigation, the potential impact on maritime commerce when two vessels collide on navigable waters, and the uncertainty and confusion that would necessarily accompany a jurisdictional test tied to the commercial use of a given boat, we hold that a complaint alleging a collision between two vessels on navigable waters properly states a claim within the admiralty jurisdiction of the federal courts.
In Sisson v. Ruby, 497 U.S. 358, 111 L. Ed. 2d 292, 110 S. Ct. 2892 (1990), the Court sustained admiralty jurisdiction in a case where a pleasure yacht caught fire while docked at a Lake Michigan marina, destroying the yacht and damaging several neighboring vessels and the marina. In considering whether the boat owner, seeking to invoke maritime jurisdiction, had shown "a substantial relationship between the activity giving rise to the incident and traditional maritime activity," the Court concluded that "the relevant activity was the storage and maintenance of the vessel at a marina on navigable waters." 497 U.S. at 364-65 (footnote omitted).
It will be noted that Executive Jet, Foremost Insurance, and Sisson v. Ruby all involved accidents occurring on waters that were both navigable and within state territorial boundaries. In contrast, the injuries suffered by plaintiff Sheila Friedman occurred on board a vessel on the high seas. I think the distinction is a vital one, in ...