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In re Complaint of MLC Fishing

February 16, 2010


The opinion of the court was delivered by: Johnson, Senior District Judge


Pending before the Court is defendant Julio Angel Velez's ("Defendant" or Velez") motion to dismiss or, in the alternative, for summary judgment. Based on the submissions of the parties, and for the reasons stated below, Defendant's motion is granted pursuant to Fed. R. Civ. P. 12(b)(1).


On or about September 22, 2007, Defendant Velez allegedly suffered injuries at Captain Mike's Marina in Howard Beach, New York. (Complaint &7.) Thereafter, Defendant filed an action in the Supreme Court of Queens County (the "State Court Action") against, among others, MLC Fishing, the plaintiff herein ("Plaintiff" or "MLC"). (Docket No. 1 at 14.) MLC is the owner of the vessel "CAPT MIKE" ("CAPT MIKE"), on which Velez, on the date in question, intended to embark on a fishing expedition. (Pl. R. 56.1 Stat. & 2.) However, Velez fell, due to the alleged "slippery, slick, greasy, oily, traplike, dangerous and hazardous condition" of the "premises and ramp." (State Court Complaint & 93.)

In order to board the CAPT MIKE from the marina, Velez was required to (and, indeed, anyone would be required to) descend a metal ramp which is neither attached permanently to the land nor to the CAPT MIKE (the "Ramp"). The Ramp leads to a floating dock, which itself must be traversed to access the steps to the CAPT MIKE. Because of the accident, Velez never boarded the CAPT MIKE.

MLC filed the instant action pursuant to the Limitation of Liability Act, 46 U.S.C. § 30501, et seq., which is premised on the Court having subject matter jurisdiction in admiralty. Velez then moved to dismiss the action based on the absence of subject matter jurisdiction. Specifically, Velez argues that admiralty/maritime jurisdiction does not exist because accident did not occur aboard the CAPT MIKE. MLC in turn argues that the injury did not occur upon land but upon an "appurtenance of the vessel because [the Ramp and/or floating dock] served as the vessel's only means of ingress and egress, and was thus the equivalent of the vessel's gangway." (Pl. Mem. in Opp'n at 6 (emphasis in original).)


I. Admiralty Tort Jurisdiction

"A federal court's authority to hear cases in admiralty flows initially from the Constitution, which 'extends' federal judicial power 'to all Cases of admiralty and maritime jurisdiction.'" Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 531 (1995) (quoting U.S. Const., Art. III, § 2). "The traditional test for admiralty tort jurisdiction asked only whether the tort occurred on navigable waters. If it did, admiralty jurisdiction followed; it if did not, admiralty jurisdiction did not exist." Jerome B. Grubart, 513 U.S. at 531-2. The Extension of Admiralty Jurisdiction Act of 1948 extended jurisdiction to include "all cases of damage or injury, to person or property, caused by a vessel on navigable waters, notwithstanding that such damage or injury be done or consummated on land." 46 U.S.C. § 30101. et seq. Therefore, the tort must either occur on navigable waters or be caused by a vessel on navigable waters. See In re Katrina Canal Breaches Litigation, 324 Fed. Appx. 370, 376 (5th Cir. 2009); In re Aramark Leisure Servs., 523 F.3d 1169, 1174-5 (10th Cir. 2008); In re Air Crash at Belle Harbor, New York on November 12, 2001; 2006 WL 1288298, at *8 (S.D.N.Y. May 9, 2006). Moreover, a trilogy of Supreme Court cases has added the requirement that the wrong bear some connection to "traditional maritime activity." Jerome B. Grubart, 513 U.S. at 532-534 (quoting, inter alia, Sisson v. Ruby, 497 U.S. 358 (1990); Foremost Ins. Co. v. Richardson, 457 U.S. 668 (1982) and Executive Jet Aviation, Inc. v. Cleveland, 409 U.S. 249 (1972)). In sum, a party seeking to invoke the court's admiralty jurisdiction must meet both a "location" and "connection with maritime activity" test.

There appears no dispute that, if the Ramp on which Velez was injured may properly be considered part of the CAPT MIKE vessel, there is a connection with maritime activity. SeeForemost, 457 U.S. at 672-5 (pleasure boating connected to traditional maritime activity).; LeBlanc v. Cleveland, 198 F.3d 353, 356 (2d Cir. 1999) (same); Matter of Guglielmo, 897 F.2d 58, 61 (2d Cir. 1990) (same). Therefore, this Court's inquiry surrounds only the question of location, to wit: whether the Ramp is part of the CAPT MIKE.

In the most analogous case from this circuit found by both the parties and the Court, the answer is no. In Dobrovich v. Hotchkiss, 14 F. Supp. 2d 232 (D. Conn. 1998), the Court faced the question of "whether a ramp leading to floating docks, which must be traversed to reach the location where the ship is moored, should not be considered an extension of the land," precisely the same question facing this Court. Id. at 234 (emphasis in original). That court recognized that, under the Admiralty Extension Act, "[w]hen it is a ship's gangway that is defective, it can be said that the vessel caused the injury." Id.; accord Victory Carriers Inc. v. Law, 404 U.S. 202, 207 (1972) ("The gangplank has served as a rough dividing line between the state and maritime regimes."). The Dobrovich court found that a ramp is not a gangway, and the parties agree that Dobrovich is instructive. MLC argues that Dobrovich is distinguishable because the ramp in that case was permanently affixed to the land, while the Ramp on which Velez was injured is not.

However, the Dobrovich court gave no quarter to this distinction. 14 F. Supp. 2d at 234 n.6 (deeming irrelevant the permanence of the ramp's affixation to land). The court there was more persuaded (as is this Court) by the physical attenuation of the vessel from the ramp, separated as they were by floating docks. Id.; see also Ellis v. Riverport Enter., 957 F. Supp. 105 (E.D. Ky. 1997) (no jurisdiction where injury occurred on floating walkway connecting dock to land).

None of the other cases relied upon by MLC support a finding that a ramp leading to a floating dock which itself leads to a vessel ought to be considered its "gangway." Scheuring v. Taylor Bros., Inc., 476 F.3d 781 (9th Cir. 2007) does not hold that "a ramp which is necessarily used for embarking and disembarking becomes a basic appurtenance of the vessel," as Plaintiff cites. Schuering merely states that "[s]ome our our sister circuits have" made that holding. Id. at 790 (emphasis added) (citing Sarauw v. Oceanic Navigation Corp., 655 F.2d 526 (3d Cir. 1981); and Romero Reyes v. Marine Enter., 494 F.2d 866 (1st Cir. 1974)).

However, neither of those circuits held that a ramp is equivalent to a gangway for the purposes of admiralty jurisdiction or ...

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