Davis et al v. Blue Aircraft, LLC et al

WO IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
JOHN E. DAVIS and MARYLOU DAVIS, )
a married couple, )
Plaintiffs, )
)
vs. )
)
BLUE AIRCRAFT, LLC, an Alaskan limited )
liability company; VENTURE TRAVEL LLC, )
an Alaskan limited liability company, d/b/a )
TAQUAN AIR; and MICHAEL J. HUDGINS, )
) No. 3:20-cv-0080-HRH
Defendants. )
_______________________________________)
O R D E R
Motion to Dismiss
Defendant Venture Travel, LLC moves to dismiss plaintiffs’ maritime claims.1 This
motion is opposed.2 Oral argument was requested but is not deemed necessary.
Background
Plaintiffs John E. (Jack) and Marylou Davis allege that on July 10, 2018, Jack Davis
was on board a seaplane operated by Taquan Air that departed from Steamboat Bay on Noyes
1Docket No. 9.
2Docket No. 18.
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Island Alaska and which was headed to the Ketchikan Harbor Seaplane Base.3 Plaintiffs
allege that the Seaplane “had two floats attached to its fuselage so that i[t] could land, float
and take-off from water.”4 Plaintiffs allege that on the day in question “[t]he weather and
visibility conditions were not good and appeared to be worsening before the Seaplane began
a take-off run across the Bay.”5 Plaintiffs allege that “[t]he weather conditions . . . appeared
to be worsening as Hudgins [the pilot] began to have the Seaplane climb above the water.”6
Plaintiffs allege that “Hudgins maneuvered the Seaplane in different directions as he tried
to find areas of less dense fog and cloud cover.”7 Plaintiffs allege that “[d]uring most of the
flight the Seaplane was flying at a low altitude above water.”8 Plaintiffs allege that “[a]s
Hudgins flew into more thick clouds east of Hydaburg and as he entered Sultzer Portage, he
began turning the Seaplane south and increasing the altitude, but then leveled off.”9
Plaintiffs allege that “[a]s the Seaplane was flying through thick clouds and fog with near
zero visibility, Hudgins suddenly pushed the throttles to full power and the engine noise rose
3Complaint at 2, ¶¶ 1-4, Docket No. 1.
4Id. at 8, ¶ 54.
5Id. at 9, ¶ 67.
6Id. at 10, ¶ 69.
7Id. at 10, ¶ 73.
8Id. at 10, ¶ 77.
9Id. at 10, ¶ 79.
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dramatically.”10 Plaintiffs allege that “[t]his alarming change in the flight caused Jack Davis
to look out the front window of the Seaplane where he suddenly saw a mountain looming
immediately ahead.”11 Plaintiffs allege that there was then “a sudden violent and loud crash
as the Seaplane hit the mountain.”12 Plaintiffs allege that “[t]he Seaplane came to rest in an
area known as Mount Jumbo on Prince of Wales Island sustaining substantial damage to [its]
wings and fuselage.”13 Plaintiffs allege that after receiving a report that a seaplane had
crashed near Sultzer Portage on Prince of Wales Island, the United States Coast Guard
launched two rescue helicopters.14 Plaintiffs allege that Jack Davis, the other passengers, and
Hudgins were rescued by a United States Coast Helicopter which “lowered a rescue
swimmer” down to the wreckage and “hoisted” them up to the helicopter.15
Plaintiffs allege that “Jack Davis has a severe and permanent injury that limits his
mobility and causes pain and discomfort as a result of the Taquan Seaplane crash of July 10,
2018.”16
10Id. at 11, ¶ 80.
11Id. at 11, ¶ 81.
12Id. at 11, ¶ 82.
13Id. at 11, ¶ 84.
14Id. at 12, ¶ 96.
15Id. at 13, ¶¶ 101-103.
16Id. at 14, ¶ 112.
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Plaintiffs commenced this action on April 6, 2020. In their complaint, plaintiffs assert
claims of negligence, negligent misrepresentation, vicarious liability, and negligent selection
and retention. Plaintiffs allege that the court has diversity jurisdiction as to all of their
claims. And, in the alternative, plaintiffs allege that the “[c]ourt has subject matter
jurisdiction over [their] claims under the maritime and admiralty jurisdiction of the
[c]ourt[.]”17
Pursuant to Rule 12(b)(1), Federal Rules of Civil Procedure, defendant now moves
to dismiss plaintiffs’ maritime claims on the grounds that the court lacks admiralty
jurisdiction.
Discussion
“A Rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe Air for Everyone
v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “In a facial attack, the challenger asserts that
the allegations contained in a complaint are insufficient on their face to invoke federal
17Id. at 4, ¶ 26.
Plaintiffs may bring maritime law claims under either diversity
jurisdiction or admiralty jurisdiction. Under either jurisdictional
statute, federal maritime law govern[s] if the claim comes within
the admiralty and maritime jurisdiction conferred on the district
courts by the Constitution and the jurisdictional statutes. In
other words, if the district court could have maritime jurisdiction
over a tort claim, [s]ubstantive maritime law controls the claim,
whatever the forum or asserted basis of jurisdiction.
Adamson v. Port of Bellingham, 907 F.3d 1122, 1125-26 (9th Cir. 2018) (internal citations
omitted).
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jurisdiction.” Id. “By contrast, in a factual attack, the challenger disputes the truth of the
allegations that, by themselves, would otherwise invoke federal jurisdiction.” Id. Defendant
contends that it is making a facial attack. The court “therefore ‘assume[s] [plaintiffs’]
[factual] allegations to be true and draw[s] all reasonable inferences in [their] favor.’” Doe
v. Holy See, 557 F.3d 1066, 1073 (9th Cir. 2009) (quoting Wolfe v. Strankman, 392 F.3d
358, 362 (9th Cir. 2004)). The court does not, “however, accept the ‘truth of legal
conclusions merely because they are cast in the form of factual allegations.’” Id. (quoting
Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003)).
Plaintiffs do not contend that “[t]he traditional test for admiralty tort jurisdiction”
applies in this case. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S.
527, 531 (1995). Rather, they contend that there is admiralty jurisdiction pursuant to the
Admiralty Extension Act (“AEA”). The AEA provides that “[t]he admiralty and maritime
jurisdiction of the United States extends to and includes cases of injury or damage, to person
or property, caused by a vessel on navigable waters, even though the injury or damage is
done or consummated on land.” 46 U.S.C. § 30101(a). “[A] party seeking to invoke federal
admiralty jurisdiction . . . over a tort claim must satisfy conditions both of location and of
connection with maritime activity.” Grubart, 513 U.S. at 534; see also, Gruver v. Lesman
Fisheries Inc., 489 F.3d 978, 982 (9th Cir. 2007) (“a party seeking to invoke federal maritime
jurisdiction over a tort claim must satisfy both a location test and a connection test”).
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“The location test focuses on ‘whether the tort occurred on navigable water or whether
injury suffered on land was caused by a vessel on navigable water.’” Id. (quoting Grubart,
513 U.S. at 534). “[T]he clear law of” the Ninth Circuit is “that the situs of a tort for the
purpose of determining admiralty jurisdiction is the place where the injury occurs.”
Taghadomi v. United States, 401 F.3d 1080, 1084 (9th Cir. 2005). “[T]he nonmaritime
location of the injury is normally dispositive.” Whitcombe v. Stevedoring Services of Amer.,
2 F.3d 312, 315 (9th Cir. 1993).
Here, the Seaplane crashed on land, rather than in navigable water, but plaintiffs argue
that does not mean that the location test is not met. Plaintiffs contend that “water-based
causes of injury on land” can meet the location test. Lu Junhong v. Boeing Co., 792 F.3d
805, 816 (7th Cir. 2015). As the court in Grubart explained, “[t]he purpose of [the AEA] was
to end concern over the sometimes confusing line between land and water, by investing
admiralty with jurisdiction over ‘all cases’ where the injury was caused by a ship or other
vessel on navigable water, even if such injury occurred on land.” Grubart, 513 U.S. at 532.
Plaintiffs argue that their injuries were caused by a vessel on or over navigable water, even
though the crash itself happened on land.
First, plaintiffs argue that the Seaplane is a vessel for purposes of admiralty
jurisdiction. Plaintiffs cite to United States v. Northwest Air Service, 80 F.2d 804 (9th Cir.
1935), in support of this argument. There, the Ninth Circuit observed that “a seaplane, while
afloat on navigable waters of the United States, may be a vessel within the admiralty
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jurisdiction[.]” Id. at 805. Plaintiffs also cite to Hark v. Antilles Airboats, Inc., 355 F. Supp.
683, 685 (D.C. Virgin Islands 1973), in which the court also observed that “[w]hen a
seaplane is floating on the water it is for practical purposes a vessel.” Plaintiffs also point
out that the United States Coast Guard inland navigation rules define a “vessel” to include
a “seaplane[],” which in turn is defined as “any aircraft designed to maneuver on the water.”
33 C.F.R. § 83.03(a), (e). Thus, plaintiffs argue that the Seaplane at issue in this case should
be considered a “vessel.”
The term “vessel” is defined in 1 U.S.C. § 3 as “every description of watercraft or
other artificial contrivance used, or capable of being used, as a means of transportation on
water.” If there is a definition that applies to “vessel” as that term is used in the AEA, it is
likely this definition,18 which the Seaplane plainly does not meet. See, e.g., United States v.
Peoples, 50 F. Supp. 462, 463 (N.D. Cal. 1943) (“the weight of authority holds that the term
‘vessel‘ does not include a seaplane”).
But even if the Seaplane is considered a vessel for purposes of the AEA, the location
test has not been satisfied because plaintiffs’ injuries were not “caused by” the Seaplane
while it was on or over navigable waters. Courts have read “caused by” as requiring
proximate cause. See, e.g., Adamson, 907 F.3d at 1132 n.10 (“the vessel was clearly a
18“§ 3 continues to supply the default definition of ‘vessel’ throughout the U.S. Code,
‘unless the context indicates otherwise.’” Stewart v. Dutra Const. Co., 543 U.S. 481, 490
(2005) (quoting 1 U.S.C. § 1)).
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proximate cause of the damage”); Scarborough v. Clemco Industries, 391 F.3d 660, 664 (5th
Cir. 2004) (“[f]or the vessel to be a cause of Scarborough’s injuries . . . the vessel must have
been a proximate cause of his injuries). Plaintiffs’ arguments that the Seaplane was the
proximate cause of their injuries fail.
Plaintiffs argue that the Seaplane was the proximate cause of their injuries because
they have alleged that it was negligent for pilot Hudgins to cast off from the Steamboat Bay
dock and take off from the navigable waters of the Gulf of Esquibel with passengers on
board. Thus, they argue that their injuries were caused by a vessel on navigable waters.
Plaintiffs are, however, focusing on what Hudgins did rather than on what the vessel
did. As one court explained,
[b]y the [Admiralty Extension] Act’s express terms . . . the
injury must be caused “by a vessel.” Appellants have cited
Gutierrez v. Waterman S.S. Corp., for the proposition that “there
is no distinction in admiralty between torts committed by the
ship itself and by the ship’s personnel.” 373 U.S. 206, 210
(1963). However, the situation in Gutierrez, as well as in the
vast majority of other cases in which admiralty jurisdiction has
been predicated on the ‘consummated on land’ provision of 46
U.S.C. § 740,[19] involved physical injury or damage done by the
vessel. Section 740, by its very terms applies to “damage” and
“injuries”. . . . [S]ince Gutierrez, the Supreme Court has clearly
indicated that the Act means the vessel and her appurtenances,
and does not include those performing actions for the vessel.
See Victory Carriers, Inc. v. Law, 404 U.S. 202, 210–12 (1971)
(clarifying that jurisdiction in Gutierrez turned solely on the fact
that the injury was caused by an appurtenance of the ship).
Because the complained of conduct was not caused by the vessel
19Prior to October 5, 2006, the AEA was codified at 46 U.S.C. Appx. § 740.
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itself or its appurtenances, appellants claims do not fall under
the ambit of 46 U.S.C. § 740.
Egorov, Puchinsky, Afanasiev & Juring v. Terriberry, Carroll & Yancey, 183 F.3d 453, 456
(5th Cir. 1999) (emphasis added). In short, “the AEA applies only if the vessel or its
appurtenances caused the injury to an individual on land.” Rios v. United States, Case No.
16-cv-10191, 2017 WL 1826496, at *4 (D. Mass. May 5, 2017). Plaintiffs have not alleged
that their injuries were caused by the Seaplane itself. They allege that “Hudgins made
negligent decisions to cast off from Steamboat Bay dock with passengers on board with
deteriorating weather and visibility conditions[,]” “Hudgins made negligent decisions to take
off from the navigable waters of Steamboat Bay with passengers on board with deteriorating
weather and visibility conditions[,]” and “Hudgins made negligent decisions to continue
flying into deteriorating weather and visibility conditions while over water and when a water
landing was available.”20 Plaintiffs are alleging that their injuries were caused by Hudgins’
negligence, not by the Seaplane itself.
But even if their injuries were not caused by a vessel (the Seaplane) on navigable
waters, which they were not, plaintiffs argue that their injuries were caused by events over
navigable waters. Plaintiffs cite to Lu Junhong, 792 F.3d 805, in support of this argument.
There, on landing from a flight from Seoul, Korea, “a Boeing 777 hit the seawall that
separates the ocean from the end of a runway at San Francisco International Airport.” Id. at
20Complaint at 5, ¶ 28b, c, and d, Docket No. 1.
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807. “The National Transportation Safety Board concluded that the principal cause of the
accident was pilot error: the pilots approached too low and too slow, and by the time they
attempted to add power and execute a missed approach, it was too late.” Id. The court
observed that “[t]his plane crossed the Pacific Ocean, a traditional maritime activity, and the
cause of the accident likely occurred over the water. But an airplane is not a “vessel” and
it was ‘over’ rather than ‘on’ the water.” Id. at 815. The question was whether this made a
difference. Id. As to the airplane, the court found that it did not because “[a]n airplane, just
like an ocean-going vessel, moves passengers and freight from one continent to another. It
crosses swaths of the high seas that are outside of any nation’s territory, and parts of the seas
adjacent to the United States but outside any state’s territory.” Id. As to the “over” versus
“on” the water question, the court concluded that this also did not make a difference,
explaining that
[t]he Supreme Court’s holding in Offshore Logistics that an
accident caused by problems in airplanes above water should be
treated, for the purpose of § 30302,[21] the same as an accident
21Section 30302, which is part of the Death on the High Seas Act, provides:
When the death of an individual is caused by wrongful act,
neglect, or default occurring on the high seas beyond 3 nautical
miles from the shore of the United States, the personal represen-
tative of the decedent may bring a civil action in admiralty
against the person or vessel responsible. The action shall be for
the exclusive benefit of the decedent’s spouse, parent, child, or
dependent relative.
(continued...)
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caused on the water carries the implication that the general
admiralty jurisdiction of 28 U.S.C. § 1333(1) also includes
accidents caused by problems that occur in trans-ocean com-
merce.
Id. at 816.
Here, plaintiffs contend that they have alleged that while the injuries to the passengers
on the Seaplane took place on land, it is possible that the accident was caused by events that
occurred over navigable water. They point out that they have alleged that “[t]he weather and
visibility conditions were not good and appeared to be worsening as Hudgins began to have
the Seaplane climb over the water[,]” that [o]nce airborne Hudgins flew the Seaplane . . .
over water”, and that “[d]uring most of the flight the Seaplane was flying at a low altitude
above water.”22 Plaintiffs insist that these allegations are sufficient to show that their injuries
were caused by events that occurred over navigable water.
Plaintiffs’ reliance on Lu Junhong is misplaced, in part, as that case did not involve
the AEA, but rather the Death on the High Seas Act. But, more important, the events that
occurred over navigable water in this case were decisions made by Hudgins. Plaintiffs are
again focusing on what Hudgins did and the decisions he made. In order to satisfy the
location test, plaintiffs must show that their injuries were caused by the vessel itself. This
plaintiffs have not done. For purposes of the instant motion, the court accepts plaintiffs’
21(...continued)
46 U.S.C. § 30302.
22Complaint at 10, ¶¶ 69, 70, 77, Docket No. 1 (emphasis added).
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allegations as true. Plaintiffs have alleged that their injuries were caused by Hudgins’
negligence. They have not alleged that although their injuries were “suffered on land[,]”
their injuries were “caused by a vessel on [or over] navigable water.” Gruver, 489 F.3d at
982 (citation omitted).
Because plaintiffs have not satisfied the location test, the court need not consider
whether the connection test has been met.23
Conclusion
Defendant’s motion to dismiss24 plaintiffs’ maritime claims is granted because the
court does not have admiralty jurisdiction over plaintiffs’ claims.
DATED at Anchorage, Alaska, this 23rd day of July, 2020.
/s/ H. Russel Holland
United States District Judge
23Had the court considered the connection test, it would have found that neither prong
of that test was met. As for the first prong, the court, based on the allegations in plaintiffs’
complaint, would have found that the role of the Coast Guard in this case would not have had
any disruptive impact on maritime commerce. As for the second prong, while a closer
question, the court would have found, based on the allegations in plaintiffs’ complaint, that
“the general character of the activity giving rise to the incident” did not “show[] a substantial
relationship to traditional maritime activity.” Grubart, 513 U.S. at 534 (citation omitted).
24Docket No. 9.
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