The Supreme Court/The Supreme Court.iso/pc/ascii/1993/93_762/93_762.zc1

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SUPREME COURT OF THE UNITED STATES
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Nos. 93-762 and 93-1094
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JEROME B. GRUBART, INC., PETITIONER
93-762               v.
GREAT LAKES DREDGE & DOCK
COMPANY et al.

CITY OF CHICAGO, PETITIONER
93-1094              v.
GREAT LAKES DREDGE & DOCK
COMPANY et al.
on writs of certiorari to the united states court
of appeals for the seventh circuit
[February 22, 1995]

  Justice Thomas, with whom Justice Scalia joins,
concurring in the judgment.
  I agree with the majority's conclusion that 28 U. S. C.
1333(1) grants the District Court jurisdiction over the
great Chicago flood of 1992.  But I write separately
because I cannot agree with the test the Court applies
to determine the boundaries of admiralty and maritime
jurisdiction.  Instead of continuing our unquestioning
allegiance to the multi-factor approach of Sisson v. Ruby,
497 U. S. 358 (1990), I would restore the jurisdictional
inquiry to the simple question whether the tort occurred
on a vessel on the navigable waters of the United
States.  If so, then admiralty jurisdiction exists.  This
clear, bright-line rule, which the Court applied until
recently, ensures that judges and litigants will not waste
their resources in determining the extent of federal
subject-matter jurisdiction.
                      I
  This case requires the Court to redefine once again
the line between federal admiralty jurisdiction and state
power due to an ambiguous balancing test.  The fact
that we have had to revisit this question for the third
time in a little over 10 years indicates the defects of the
Court's current approach.  The faults of balancing tests
are clearest, and perhaps most destructive, in the area
of jurisdiction.  Vague and obscure rules may permit ju-
dicial power to reach beyond its constitutional and statu-
tory limits, or they may discourage judges from hearing
disputes properly before them.  Such rules waste judges'
and litigants' resources better spent on the merits, as
this case itself demonstrates.  It is especially unfortu-
nate that this has occurred in admiralty, an area that
once provided a jurisdictional rule almost as clear as the
9th and 10th verses of Genesis: -And God said, Let the
waters under the heaven be gathered together unto one
place, and let the dry land appear: and it was so.  And
God called the dry land Earth; and the gathering
together of the waters called he Seas: and God saw that
it was good.-  The Holy Bible, Genesis 1:9-10 (King
James Version).
  As recently as 1972, courts and parties experienced
little difficulty in determining whether a case triggered
admiralty jurisdiction, thanks to the simple -situs rule.-
In The Plymouth, 3 Wall. 20, 36 (1866), this Court
articulated the situs rule thus: -[e]very species of tort,
however occurring, and whether on board a vessel or
not, if upon the high seas or navigable waters, is of ad-
miralty cognizance.-  This simple, clear test, which Jus-
tice Story pronounced while riding circuit, see Thomas
v. Lane, 23 F. Cas. 957, 960 (No. 13,902) (CC Me. 1813),
did not require alteration until 1948, when Congress
included within the admiralty jurisdiction torts caused
on water, but whose effects were felt on land.  See Ex-
tension of Admiralty Jurisdiction Act, 62 Stat. 496, 46
U. S. C. App. 740.
  The simplicity of this test was marred by modern
cases that tested the boundaries of admiralty jurisdiction
with ever more unusual facts.  In Executive Jet Aviation,
Inc. v. City of Cleveland, 409 U. S. 249 (1972), we held
that a plane crash in Lake Erie was not an admiralty
case within the meaning of 1333(1) because the tort did
not -bear a significant relationship to traditional mari-
time activity.-  Id., at 268.  What subsequent cases have
failed to respect, however, is Executive Jet's clear limita-
tion to torts involving aircraft.  As we said:
-One area in which locality as the exclusive test of
admiralty tort jurisdiction has given rise to serious
problems in application is that of aviation. . . . [W]e
have concluded that maritime locality alone is not a
sufficient predicate for admiralty jurisdiction in
aviation tort cases.-  Id., at 261 (emphasis added).
Our identification of the -significant relationship- factor
occurred wholly in the context of a discussion of the dif-
ficulties that aircraft posed for maritime law.  In fact,
while we recognized the extensive criticism of the strict
locality rule, we noted that -for the traditional types of
maritime torts, the traditional test has worked quite
satisfactorily.-  Id., at 254.  Thus, Executive Jet, prop-
erly read, holds that if a tort occurred on board a vessel
on the navigable waters, the situs test applies, but if the
tort involved an airplane, then the -significant relation-
ship- requirement is added.
  Although it modified the strict locality test, Executive
Jet still retained a clear rule that I could apply comfort-
ably to the main business of the admiralty court.  None-
theless, the simplicity and clarity of this approach met
its demise in Foremost Ins. Co. v. Richardson, 457 U. S.
668 (1982).  That case involved the collision of two
pleasure boats on the navigable waters, a tort that some
commentators had argued did not fall within the
admiralty jurisdiction because it did not implicate
maritime commerce.  See, e.g., Stolz, Pleasure Boating
and Admiralty: Erie at Sea, 51 Calif. L. Rev. 661 (1963).
The Court could have resolved the case and found
jurisdiction simply by applying the situs test.  Instead,
responding to the arguments that admiralty jurisdiction
was limited to commercial maritime activity, the Court
found that the tort's -significant connection with tradi-
tional maritime activity- and the accident's -potential
disruptive impact- on maritime commerce prompted an
exercise of federal jurisdiction.  457 U. S., at 674-675.
  It is clear that Foremost overextended Executive Jet,
which had reserved the significant relationship inquiry
for aviation torts.  As Justice Scalia noted in Sisson,
Executive Jet is better -understood as resting on the
quite simple ground that the tort did not involve a
vessel, which had traditionally been thought required by
the leading scholars in the field.-  497 U. S., at 369-370
(opinion concurring in judgment).  Executive Jet did not
in the least seek to alter the strict locality test for torts
involving waterborne vessels.  Foremost, however, con-
verted Executive Jet's exception into the rule.  In addi-
tion to examining situs, Foremost required federal courts
to ask whether the tort bore a significant relationship to
maritime commerce, and whether the accident had a po-
tential disruptive impact on maritime commerce.  457
U. S., at 673-675.  The lower courts adopted different
approaches as they sought to apply Foremost's alteration
of the Executive Jet test.  See Sisson, supra, at 365, n. 4
(citing cases).
  Sisson then affirmed the inherent vagueness of the
Foremost test.  Sisson involved a marina fire that was
caused by a faulty washer-dryer unit on a pleasure
yacht.  The fire destroyed the yacht and damaged
several vessels in addition to the marina.  In finding
admiralty jurisdiction, the Court held that the federal
judicial power would extend to such cases only if: (1) in
addition to situs, (2) the -incident- poses a potential
hazard to maritime commerce, and (3) the -activity-
giving rise to the incident bears a substantial relation-
ship to traditional maritime activity.  497 U. S., at
362-364.  The traditional situs test also would have
sustained a finding of jurisdiction because the fire
started on board a vessel on the waterways.  Thus, what
was once a simple question-did the tort occur on the
navigable waters-had become a complicated, multi-
factor analysis.
  The disruption and confusion created by the Foremost-
Sisson approach is evident from the post-Sisson decisions
of the lower courts and from the majority opinion itself.
Faced with the task of determining what is an -incident-
or -activity- for Sisson purposes, the Fourth, Fifth, and
Ninth Circuits simply reverted to the multi-factor test
they had employed before Sisson.  See Price v. Price,
929 F. 2d 131, 135-136 (CA4 1991); Coats v. Penrod
Drilling Corp., 5 F. 3d 877, 885-886 (CA5 1993); Delta
Country Ventures, Inc. v. Magana, 986 F. 2d 1260, 1263
(CA9 1993).  The District Court's opinion in this case is
typical: while nodding to Sisson, the court focused its
entire attention on a totality-of-the-circumstances test,
which includes factors such as -the functions and roles
of the parties- and -[t]he traditional concepts of the role
of admiralty law.-  Pet. for Cert. of Chicago 32a.  Such
considerations have no place in the Sisson test and
should have no role in any jurisdictional inquiry.  The
dangers of a totality-of-the-circumstances approach
to jurisdiction should be obvious.  An undefined test
requires courts and litigants to devote substantial
resources to determine whether a federal court may hear
a specific case.  Such a test also introduces undesirable
uncertainty into the affairs of private actors-even those
involved in common maritime activities-who cannot pre-
dict whether or not their conduct may justify the exer-
cise of admiralty jurisdiction.
  Although the majority makes an admirable attempt to
clarify what Sisson obscures, I am afraid that its
analysis cannot mitigate the confusion of the Sisson test.
Thus, faced with the -potential to disrupt maritime
commerce- prong ante, at 10, the majority must resort
to -an intermediate level of possible generality- to de-
termine the -`general features'- of the incident here,
id., at 11.  The majority does not explain the origins of
-levels of generality,- nor, to my knowledge, do we em-
ploy such a concept in other areas of jurisdiction.  We
do not use -levels of generality- to characterize residency
or amount in controversy for diversity purposes, or to
determine the presence of a federal question.  Nor does
the majority explain why an -intermediate- level of gen-
erality is appropriate.  It is even unclear what an inter-
mediate level of generality is, and we cannot expect that
district courts will apply such a concept uniformly in
similar cases.  It is far from obvious how the undefined
intermediate level of generality indicates that the -inci-
dent- for Sisson purposes is that of a vessel damaging
an underwater structure.
  The majority also applies levels of generality to the
next prong of Sisson-whether the tortfeasor is engaged
in -activity- that shows a -substantial relationship to
traditional maritime activity.-  The majority decides that
the activity is repair work by a vessel on a navigable
waterway.  But, as the petitioners rightly argue, the
-activity- very well could be bridge repair or pile driving.
One simply cannot tell due to the ambiguities intrinsic
to Sisson and to the uncertainty as to the meaning of
levels of generality.  The majority's response implicitly
acknowledges the vagueness inherent in Sisson: -Al-
though there is inevitably some play in the joints in
selecting the right level of generality when applying the
Sisson test, the inevitable imprecision is not an excuse
for whimsy.-  Ante, at 14.  The Court cannot provide
much guidance to district courts as to the correct level
of generality; instead, it can only say that any level
is probably sufficient so long as it does not lead to
-whimsy.-  When it comes to these issues, I prefer a
clearer rule, which this Court has demanded with re-
spect to federal question or diversity jurisdiction.
Indeed, the -play in the joints- and -imprecision- that
the Court finds -inevitable- easily could be avoided by
returning to the test that prevailed before Foremost.  In
its effort to create an elegant, general test that could
include all maritime torts, Sisson has only disrupted
what was once a simple inquiry.

                     II
  It should be apparent that this Court does not owe
Sisson the benefit of stare decisis.  As shown above,
Sisson and Foremost themselves overextended Executive
Jet and deviated from a long tradition of admiralty
jurisprudence.  More importantly, the new test of Sisson
and Foremost did not produce greater clarity or simplic-
ity in exchange for departing from a century of undis-
turbed practice.  Instead, as discussed earlier, the two
cases have produced only confusion and disarray in the
lower courts and in this Court as well.  It would seem
that in the area of federal subject-matter jurisdiction,
vagueness and ambiguity are grounds enough to revisit
an unworkable prior decision.
  In place of Sisson I would follow the test described at
the outset.  When determining whether maritime
jurisdiction exists under 1333(1), a federal district court
should ask if the tort occurred on a vessel on the nav-
igable waters.  This approach won the approval of two
Justices in Sisson, see 497 U. S., at 373 (Scalia, J.,
joined by White, J., concurring in judgment).  Although
Justice Scalia's Sisson concurrence retained a -normal
maritime activities- component, it recognized that any-
thing a vessel does in the navigable waters would meet
that requirement, and that -[i]t would be more straight-
forward to jettison the `traditional maritime activity'
analysis entirely.-  Id., at 374.  I wholly agree and have
chosen the straightforward approach, which, for all of its
simplicity, would have produced the same results the
Court arrived at in Executive Jet, Foremost, Sisson, and
this case.  Although this approach -might leave within
admiralty jurisdiction a few unusual actions,- ibid., such
freakish cases will occur rarely.  In any event, the re-
sources needed to resolve them -will be saved many
times over by a clear jurisdictional rule that makes it
unnecessary to decide- what is a traditional maritime
activity and what poses a threat to maritime commerce.
Id., at 374-375.
  In this case, a straightforward application of the
proposed test easily produces a finding of admiralty
jurisdiction.  As the majority quite ably demonstrates,
the situs requirement is satisfied because the tort was
caused by a -spud barge- on the Chicago River.  Ante,
at 6-8.  Although the accident's effects were felt on
land, the Extension of Admiralty Jurisdiction Act brings
the event within 1333(1).  While I agree with the
majority's analysis of this question, I disagree with its
decision to continue on to other issues.  A simple
application of the situs test would yield the same result
the Court reaches at the end of its analysis.
  This Court pursues clarity and efficiency in other
areas of federal subject-matter jurisdiction, and it should
demand no less in admiralty and maritime law.  The
test I have proposed would produce much the same
results as the Sisson analysis without the need for
wasteful litigation over threshold jurisdictional questions.
Because Sisson departed from a century of precedent, is
unworkable, and is easily replaced with a bright-line
rule, I concur only in the judgment.