No. 18-266

In the

Supreme Court of the United States

_________________________

FRANCIS & MARY MARION, CHARLES & MARY PINCKNEY, JOHN & ELIZABETH RUTLEDGE, JAMES S. THURMOND, AND

ESSIE MAY WASHINGTON-WILLIAMS,

Petitioners,

v.

SALLY’S SEAFOOD SHACK, INC.,

Respondent.

___________________________

On Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit

_________________________

BRIEF FOR PETITIONERS

_________________________

Team E Counsel for Petitioners

i

QUESTIONS PRESENTED

1. Whether the Limitation of Liability Act, 46 U.S.C. §§ 30501-12, provides an independent basis for admiralty jurisdiction which obviates the requirements under general maritime law.

2. Whether 28 U.S.C. § 1292(a)(3) grants the Fourth Circuit Court of Appeals appellate jurisdiction over the district court’s determination that Respondent can limit its liability to a minimal amount.

ii

TABLE OF CONTENTS Page(s)

QUESTIONS PRESENTED ........................................................................................................i TABLE OF CONTENTS ........................................................................................................... ii TABLE OF AUTHORITIES ..................................................................................................... iii OPINIONS BELOW ................................................................................................................... 2

JURISDICTION ......................................................................................................................... 2 STATUTORY PROVISIONS ..................................................................................................... 3 STATEMENT OF THE CASE ................................................................................................... 3 I. Statement of the Facts ...................................................................................................... 3 II. Statement of the Proceedings ............................................................................................ 4 SUMMARY OF THE ARGUMENT .......................................................................................... 5

I. THE FOURTH CIRCUIT LEGALLY ERRED IN DETERMINING THAT THE LIMITATION OF LIABILITY ACT PROVIDES AN INDEPENDENT BASIS FOR ADMIRALTY JURISDICTION. ......................................................................................... 6

A. The Fourth Circuit’s interpretation of Richardson v. Harmon is inconsistent with modern general maritime law. .......................................................................................... 7 B. Congress did not intend for the Limitation Act to extend admiralty jurisdiction beyond the scope established by general maritime law. ................................................. 12 1. The Limitation Act is procedural and the language of the statute does not contain any jurisdictional grant. ............................................................................................... 13 2. The intent of Congress will not be furthered by expanding admiralty jurisdiction to cover vessels on non-navigable waters. ....................................................................... 15

II. IF THIS COURT DETERMINES THAT THIS IS AN ADMIRALTY CASE, THEN THE FOURTH CIRCUIT IMPROPERLY DISMISSED PETITIONER’S APPEAL BECAUSE THE COURT HAD APPELLATE JURISDICTION UNDER 28 U.S.C. § 1292(a)(3). ............................................................................................................. 17

A. By granting Respondent’s petition to limit its liability, the district court determined the rights and liabilities of the parties. ........................................................................... 19 B. The legislative history and intent behind 28 U.S.C. § 1292(a)(3) show that Congress envisioned the exception applying in a broader context than what most courts have applied.............................................................................................................................. 21

C. Respondent is not entitled to limit its liability under the Limitation of Liability Act because the requirements for the statute have not been met. ........................................ 23

CONCLUSION ......................................................................................................................... 25 APPENDIX A: APPENDIX TO PETITION FOR CERTIORARI .............................................. A

iii

TABLE OF AUTHORITIES Page(s)

CASES

U.S. SUPREME COURT

 Norwich Co. v. Wright,  80 U.S. 104, 1998 A.M.C. 2061 (1871) ................................................................................. 13 Florida Dept. of Revenue v. Piccadilly Cafeterias, Inc., 554 U.S. 33 (2008) ................................................................................................................ 14 Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 1995 A.M.C. 913 (1995) ...................................................................... 9, 10, 17 Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 2001 A.M.C. 913 (2001) ................................................................................. 13 Maryland Cas. Co. v. Cushing, 347 U.S. 409, 1954 A.M.C. 837 (1954) ........................................................................... 12, 15 Richardson v. Harmon, 222 U.S. 96, 2001 A.M.C. 1207 (1911) ..................................................................... 7, 8, 9, 11 Romero v. Int’l Terminal Operating Co., 358 U.S. 354, 1959 A.M.C. 832 (1959) ................................................................................. 12 Sisson v. Ruby, 497 U.S. 358, 1990 A.M.C. 1801 (1990) ................................................................................. 9 The Daniel Ball, 77 U.S. 557, 2000 A.M.C. 2106 (1870) ................................................................................ 15

U.S. COURT OF APPEALS

All Alaskan Seafoods, Inc. v. M/V Sea Producer, 882 F.2d 425, 1989 A.M.C. 2935 (9th Cir. 1989) .................................................................. 19 Barnes v. Sea Haw. Rafting, LLC, 889 F.3d 517, 2018 A.M.C. 1939 (9th Cir. 2018) .................................................................. 19 Carman Tool & Abrasives, Inc. v. Evergreen Lines, 871 F.2d 897, 1989 A.M.C. 913 (9th Cir. 1989) .................................................................... 23 City of Fort Madison v. Emerald Lady, 990 F.2d 1086, 1993 A.M.C. 2091 (8th Cir. 1993) ............................................................... 21

iv

Complaint of Sisson, 867 F.2d 341, 1989 A.M.C. 609 (7th Cir. 1989) ............................................................ 8, 9, 24 Evergreen International (USA) Corp. v. Standard Warehouse, 33 F.3d 420, 1995 A.M.C. 635 (4th Cir. 1994) ...................................................................... 22 Guillory v. Outboard Motor Corp., 956 F.2d 114, 1993 A.M.C. 605 (5th Cir.1992) ..................................................................... 11 In re Wills Lines, Inc., 227 F.2d 509, 1956 A.M.C. 298 (2d Cir. 1955) .................................................................... 19 Kesserling v. F/T Arctic Hero, 30 F.3d 1123, 1995 A.M.C. 539 (9th Cir. 1994) .................................................................... 19 Lewis Charters, Inc. v. Huckins Yacht Corp., 871 F.2d 1046, 1989 A.M.C. 1521 (11th Cir. 1989) .............................................................. 15 Medomsley Steam Shipping Co. v. Elizabeth River Terminals, Inc., 317 F.2d 741, 1963 A.M.C. 1444 (4th Cir. 1963) .................................................................. 21 MLC Fishing, Inc. v. Velez, 667 F.3d 140, 2012 A.M.C. 485 (2d Cir. 2011) ............................................................... 12, 14 Seven Resorts, Inc. v. Cantlen, 57 F.3d 771, 1995 A.M.C. 2087 (9th Cir.1995) ..................................................................... 11 St. Louis Shipbuilding & Steel Co. v. Petroleum Barge Co., 249 F.2d 905, 1958 A.M.C. 506 (8th Cir. 1957) .................................................................... 19 Three Buoys Houseboat Vacations U.S.A. Ltd. v. Morts, 921 F.2d 775, 1991 A.M.C. 1356 (8th Cir. 1990) ............................................................ 11, 16 Todd Shipyards Corp. v. Auto Transp., S.A., 763 F.2d 745, 1987 A.M.C. 1831 (5th Cir. 1985) .................................................................. 22 Wallis v. Prince Cruises, Inc., 306 F.3d 827, 2002 A.M.C. 2270 (9th Cir. 2002) ................................................ 18, 19, 21, 23

U.S. DISTRICT COURT

Carter v. Allstate Ins. Co., 743 F. Supp. 2d 103, 2010 A.M.C. 2574 (D. Conn. 2010) .............................................. 10, 14

v

Complaint of Sisson, 663 F. Supp. 858, 1988 A.M.C. 1727 (N.D. Ill. 1987) ............................................................. 9 Hickam v. Segars, 905 F. Supp. 2d 835 (M.D. Tenn. 2012) ................................................................................ 17 In re Bernstein, 81 F. Supp. 2d 176, 2000 A.M.C. 760 (D. Mass. 1999) .................................................. 10, 11 In re Madison Coal & Supply Co., 321 F. Supp. 2d 809 (S.D.W. Va. 2003) ................................................................................ 12 Sea Vessel, Inc. v. Reyes, 23 F.3d 345, 1994 A.M.C. 2736 (11th Cir.1994) ................................................................... 11

CONSTITUTIONAL PROVISIONS

U.S. Const. art. III, § 2 .......................................................................................................... 3, 12

STATUTES

28 U.S.C. § 1292 ....................................................................................................................... 27

28 U.S.C. § 1292(a)(3) ....................................................................................................... passim

28 U.S.C. § 1346(b) .................................................................................................................. 18

29 U.S.C. § 185(a) .................................................................................................................... 18

46 U.S.C. § 30101(a) .............................................................................................................. 8, 9

46 U.S.C. §§ 30501-12 ....................................................................................................... passim

MISCELLANEOUS

SCHOLARLY ARTICLES

Arthur A. Crais, Jr., The Limitation of Shipowner's Liability Act As an Independent Basis for

Federal Jurisdiction?, 17 LOY. MAR. L.J. 205, 236–37 (2018) ............................ 10, 15, 16, 17

1

No. 18-266

In the

Supreme Court of the United States _________________________

FRANCIS & MARY MARION, CHARLES & MARY PINCKNEY, JOHN & ELIZABETH RUTLEDGE, JAMES S. THURMOND, AND

ESSIE MAY WASHINGTON-WILLIAMS,

Petitioners,

v.

SALLY’S SEAFOOD SHACK, INC.,

Respondent.

___________________________

On Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit

_________________________

BRIEF FOR PETITIONERS

_________________________

TO THE HONORABLE SUPREME COURT OF THE UNITED STATES:

Petitioners, by counsel, respectfully submit this brief supporting their request that this

Court find Respondent unable to limit its liability pursuant to the Limitation of Liability Act

(“Act”), 46 U.S.C. §§ 30501-12, because: (1) the Act does not provide an independent basis for

admiralty jurisdiction; or in the alternative, (2) that Petitioners’ interlocutory appeal was

appropriate pursuant to 28 U.S.C. § 1292(a)(3) because the decision of the district court effectively

determined substantive rights and liabilities of the parties. Petitioners request that this Court

reverse the judgment of the Court of Appeals for the Fourth Circuit.

2

OPINIONS BELOW

The opinion of the United States District Court for the District of South Carolina, dated

March 13, 2017, is reported and appears as In re Sally’s Seafood Shack, Inc., 243 F. Supp. 3d 702,

(D.S.C. 2017). The Appendix to the Petition for Certiorari is reproduced in Appendix A to the

Brief for Petitioners, see infra, p. A-1.

The opinion of the United States Court of Appeals for the Fourth Circuit and the opinion

of Judge Solomon concurring, dated May 7, 2018, is reported and appears as In re Sally’s Seafood

Shack, Inc. 890 F.3d 1384, 2018 A.M.C. 3333 (4th Cir. 2018). The Appendix to the Petition for

Certiorari is reproduced in Appendix A to the Brief for Petitioners, see infra, p. A-1.

The order of the United States Court of Appeals for the Fourth Circuit denying rehearing

dated June 26, 2018, is unreported and reproduced at R. 7a. The Appendix to the Petition for

Certiorari is reproduced in Appendix A to the Brief for Petitioners see infra, p. A-1.

JURISDICTION

On November 5, 2015, Respondent filed petition in federal district court to limit its liability

pursuant to the Limitation Act after Petitioners filed various tort actions against Respondent in

state court. On March 13, 2017 the District Court for the District of South Carolina ruled in favor

of Respondent after Phase One of a bifurcated trial. On May 7, 2018, the Fourth Circuit Court of

Appeals dismissed Petitioners’ interlocutory appeal for lack of appellate jurisdiction. On June 26,

2018, the Fourth Circuit denied Petitioners’ request for rehearing. The Supreme Court granted the

petition for certiorari on December 3, 2018. Jurisdiction, if any, is proper under 28 U.S.C. §

1292(a)(3).

3

STATUTORY PROVISIONS

Relevant statutory provisions include: 28 U.S.C. § 1292(a)(3), 28 U.S.C. § 1333, 46 U.S.C.

§ 30101, 46 U.S.C. §§ 30501-12.

Relevant constitutional provisions include: U.S. Const. art. III, § 2.

STATEMENT OF THE CASE

I. Statement of the Facts

This is an action resulting from Sally’s Seafood Shack, Inc.’s (“Respondent”) petition to

limit its liability under the Limitation of Liability Act. R. 2a. This suit arises from injuries sustained

by Francis and Mary Marion, Charles and Mary Pinckney, John and Elizabeth Rutledge, James S.

Thurmond, and Essie Mae Washington-Williams (“Petitioners”) while aboard Respondent’s

vessel. R. 10a. On July 17, 2015, Petitioners were dining aboard Respondent’s vessel, the F/V

Flamingo (“Flamingo”), when an explosion in the galley caused it to sink to its anchorage in

twelve feet of water. R. 10a. Petitioners filed common law tort actions in state court against

Respondent as Owner and Operator of the Flamingo. R. 9a.

In 2008, Respondent, a South Carolina corporation, purchased the Flamingo and converted

it to a restaurant. R. 10a. The previous owner operated the Flamingo as a fishing vessel for twenty

years prior to this purchase. R. 10a. After being converted to a restaurant in 2008 and up until the

incident in 2015, the floating restaurant remained indefinitely moored on the banks of the Cooper

River in Charleston, South Carolina. R. 10a. The Flamingo’s berth was surrounded by a cofferdam

for protection but also to ensure that the converted fishing vessel would be unable to reach the

main portion of the river if it ever became detached from its moorings. R. 10a.

The district court concluded that Respondent’s employee, John Calhoun, caused the

explosion that sank the vessel. R. 13a. John Calhoun was responsible for washing dishes, cleaning

4

the galley, and assisting the chef as needed. R. 10a. On the night of July 17, 2015, Calhoun was

instructed to light the gas range. R. 14a. The facts indicate that after turning on the gas but before

lighting the flame, Calhoun received an incoming call to his mobile phone. R. 14a. When Calhoun

stepped out of the galley to take the call, the gas accumulated until “something” triggered an

explosion in the galley, ripping a hole in the hull beneath the waterline and causing the converted

fishing vessel to sink. R. 14a. John Calhoun was not present in the galley when the explosion

occurred. R. 10a.

II. Statement of the Proceedings

In late July and early August of 2015, Petitioners filed common law state-court tort actions

against Respondent. R. 9a. Respondent filed a petition under Supplemental Rule F of the Federal

Rules of Civil Procedure to limit its liability pursuant to the Limitation Act, 46 U.S.C. §§ 30501-

12 and complied with 46 U.S.C. 30511(b)(1). R. 2a. This stayed the Petitioners’ state-court tort

actions under 46 U.S.C. § 30511(c). R. 2a. Petitioners filed claims in the limitation proceeding that

mirrored their state-court tort actions. R. 2a.

The district court bifurcated the trial. R. 2a. In Phase One, the court heard evidence

regarding Respondent’s entitlement to limitation of liability and postponed the issues of liability

and damages until Phase Two. R. 9a. Despite finding that the requirements for admiralty tort

jurisdiction under general maritime law were not met, the district court issued an opinion after

Phase One holding that: (1) the Limitation Act provided an independent basis for admiralty

jurisdiction, and (2) under the Act, Respondent could limit its liability, if any, to $1000.00 (the

post-incident value of the Flamingo). R. 2a.

Petitioners filed an appeal in the Fourth Circuit to challenge the district court’s ruling on

Respondent’s entitlement to limit liability. R. 2a. In support of appellate jurisdiction, Petitioners

5

argued for an interlocutory appeal as a matter of right under 28 U.S.C. § 1292(a)(3); R. 3a. While

the Fourth Circuit denied the appeal, it agreed with the district court’s determination that the

Limitation Act provides an independent basis for admiralty jurisdiction. R. 4a. Despite it being

abundantly clear that the district court has determined the Respondent will not bear any real

liability for the claimants’ injuries, the court dismissed the appeal for lack of appellate jurisdiction

in an effort to remain loyal to a previous Fourth Circuit panel decision. R. 6a.

On June 26, 2018, the Fourth Circuit denied a petition for rehearing and Circuit Judge

Solomon cited his previous concurrence in support of rehearing. R. 7a. Subsequently, Petitioners

filed a petition for certiorari which this Court granted.

SUMMARY OF THE ARGUMENT

I. Limitation of Liability Act

The Fourth Circuit, as well as the South Carolina District Court, legally erred when it held

that the Limitation of Liability Act provides an independent basis for federal admiralty jurisdiction.

The precedent relied upon by the lower courts no longer has any modern-day application. Every

United States Court of Appeals to consider the issue uniformly holds that the Limitation Act is

procedural, only becoming available once jurisdiction under general maritime law is established.

Moreover, the language of the Limitation Act does not contain the word “jurisdiction” or any other

granting language. The history of the Act evidences Congress’s desire to promote maritime

commerce and trade. To permit limitation for incidents lacking a connection to navigable waters

does nothing to further the purpose of the law. This Court should hold that the Limitation Act does

not provide an independent basis of jurisdiction and allow Petitioners to pursue their tort claims in

state court.

6

II. Appellate Jurisdiction

If this Court decides that admiralty jurisdiction is appropriate by virtue of the Limitation

of Liability Act, the Fourth Circuit legally erred when it dismissed Petitioners’ appeal because

appellate jurisdiction was proper under 28 U.S.C. § 1292(a)(3). The Fourth Circuit believed the

appeal was premature because the District Court of South Carolina has not yet determined the

rights and liabilities as required by § 1292(a)(3). However, the Fourth Circuit misinterpreted the

statute and followed precedent that is inconsistent with the legislative history and intent behind §

1292(a)(3). The district court’s ruling that Respondent could limit its liability to $1,000.00 was a

determination regarding the rights and liabilities of a party as § 1292(a)(3) requires. The appeal

was not premature but rather practical at that point in the litigation, as well as beneficial to all

parties involved. Since there continues to be conflict among lower courts on when § 1292(a)(3)

can be invoked in admiralty cases, this Court should adopt a uniform rule on how to interpret and

apply the statute in situations such as the instant case. This Court should reverse the Fourth

Circuit’s dismissal of Petitioners’ appeal and instruct the court to determine if the F/V Flamingo

is a “seagoing vessel” as required by the Limitation Act.

ARGUMENT

I. THE FOURTH CIRCUIT LEGALLY ERRED IN DETERMINING THAT THE LIMITATION OF LIABILITY ACT PROVIDES AN INDEPENDENT BASIS FOR ADMIRALTY JURISDICTION.

Aside from the obvious inequity of allowing a maximum of $1,000.00 to be divided among

the eight individuals who suffered injuries while aboard the F/V Flamingo (“Flamingo”), the

United States Court of Appeals for the Fourth Circuit (“Fourth Circuit”) failed to properly dismiss

Respondent’s petition to limit its liability for lack of admiralty jurisdiction. Accordingly, this Court

should reverse the Fourth Circuit’s decision that the Limitation of Liability Act, 46 U.S.C. §§

7

30501 et seq. (“Limitation Act” or “Act”), provides an independent basis of admiralty jurisdiction

for two reasons. First, the Fourth Circuit’s interpretation of Richardson v. Harmon is inconsistent

with modern general maritime law; and second, the statutory language and purpose of the

Limitation Act demonstrate that Congress intended to install a procedure for limitation, not to

expand admiralty jurisdiction.

A. The Fourth Circuit’s interpretation of Richardson v. Harmon is inconsistent with modern general maritime law.

The Fourth Circuit’s reliance on Richardson v. Harmon, 222 U.S. 96, 2001 A.M.C. 1207

(1911) is not supported by the holding of that case nor by any subsequent decisions of this Court.

In Richardson v. Harmon, the steam barge “Crete” collided with a support structure on a railway

drawbridge while navigating up the Maumee river from Lake Erie. Id. at 99-100. This resulted in

significant damage to the bridge and the barge, and the owners of the barge filed a petition for

limitation while the owners of the bridge filed an action in state court. Id. Since the incident

occurred before the passage of the Admiralty Extension Act (“AEA”), the collision was not

considered to be a maritime tort. Id. at 101 (“[I]t had been the settled law that the district court . .

. had no jurisdiction to try an action for damages against a shipowner . . . from a collision between

the ship and a structure on land, such as a bridge or pier.”).

The crux of the Richardson decision focused on the amendments to the Limitation Act

which permitted limitation for “all debts and liabilities” of the shipowner. Id. at 101 (emphasis

added). The Richardson Court concluded that this broad language included the bridge owners’

non-maritime tort claims, a result consistent with Congress’ “policy of limiting the owner’s risk to

his interest in the ship in respect of all claims arising out of the conduct of the master and crew . .

. .” Id. at 106.

8

The Richardson Court established a maritime policy that Congress would later recognize

in 1948 with the passage of the AEA. See 46 U.S.C. § 30101(a) (“The 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.”). The federal circuits recognize that the AEA, “like Richardson v.

Harmon, enlarges admiralty jurisdiction for harm caused by a vessel on navigable water to persons

or property on land.” David Wright Charter Serv. of N. Carolina, Inc. v. Wright, 925 F.2d 783,

785, 1999 A.M.C. 2927, 2929 (4th Cir.1991). The Fourth Circuit’s holding that Richardson

controls this case is not only incorrect, but also inconsistent with the present parties’ stipulation

that “the Admiralty Extension Act, 46 U.S.C. § 30101, does not confer jurisdiction on the facts

here.” R. 4a. As the Seventh Circuit correctly pointed out in the Complaint of Sisson, “[a]lthough

the [AEA] does not specifically supplant [Richardson], it does eliminate the need and reason for

the rule established by the case . . . .” Complaint of Sisson, 867 F.2d 341, 349, 1989 A.M.C. 609,

622 (7th Cir. 1989).

Although the Court in Richardson expanded federal jurisdiction over a cause of action that

did not otherwise give rise to admiralty jurisdiction, no opinion of the Court ever stated that the

Limitation Act could provide maritime jurisdiction to vessels on non-navigable waters. On its face,

Richardson bears little factual similarity to the instant case. As opposed to the steam barge

navigating inland up the Maumee River at the time of the collision, the Flamingo was not in

navigation at the time the explosion occurred. Richardson, 222 U.S. at 99-100; R. 10a. Although

Respondent’s ship once served as a fishing vessel, since 2008 and at all relevant times it remained

indefinitely moored to the banks of Cooper River as a stationary seafood restaurant. R. 9a.

Moreover, the incident in Richardson involved a land-based plaintiff and a vessel on navigable

9

waters. Richardson, 222 U.S. at 99-100. In the instant case, the harm did not arise from an incident

on navigable waters. The harm in Richardson was felt on land, while the Petitioners’ injuries were

inflicted entirely while the restaurant was on a non-navigable waterbody. R. 10a. For these reasons,

finding Richardson v. Harmon controlling on the facts in the instant case amounts to legal error.

Two consecutive Supreme Court cases further cast doubt on the viability of Richardson. In

Sisson v. Ruby, 497 U.S. 358, 1990 A.M.C. 1801 (1990), the plaintiff contended that limitation

“[did] not depend on the maritime nature of the liability,” thus, “jurisdiction under the Limitation

Act [was] not coextensive with admiralty jurisdiction in tort.” Complaint of Sisson, 867 F.2d 341,

349, 1989 A.M.C. 609, 622 (7th Cir. 1989). In Sisson, the plaintiff's 56–foot pleasure yacht, “The

Ultorian,” caught fire while docked at a Marina in Michigan City, Indiana. Complaint of Sisson,

663 F. Supp. 858, 859, 1988 A.M.C. 1727, 1728 (N.D. Ill. 1987). The fire, allegedly resulting from

a defective washer/dryer, destroyed the vessel and caused extensive damage to the marina and

several neighboring boats. Id. The claimant owners of the vessels and marina estimated damages

exceeding $275,000; the net value of The Ultorian after the casualty was only $800. Id.

To determine whether limitation was proper, the Supreme Court first tested whether

admiralty jurisdiction existed under 28 U.S.C. § 1333(1). In applying a two-part test, the Court

first noted that the incident causing the harm, the burning of docked boats at a marina on navigable

waters, was “likely to disrupt [maritime] commercial activity.” Sisson, 497 U.S. at 363. Second,

the Court found a “substantial relationship” with a “traditional maritime activity” arising from “the

storage and maintenance of a vessel . . . on navigable waters.” Id. at 365–367. Jurisdiction under

these facts precluded the question of whether the Limitation Act provides an independent basis.

Five years later in Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S.

527, 1995 A.M.C. 913 (1995), the Court again stated that it “need not consider [the respondent’s]

10

. . . argument that the [Act] provides an independent basis of federal jurisdiction over the

complaint” because jurisdiction was present under § 1333(1). Id. at 543 n. 5. The Court stated that

“the basic rationale for federal admiralty jurisdiction is protection of maritime commerce through

uniform rules of decision.” Id. at 544. Furthermore, the Grubart Court expanded upon the analysis

of Sisson, seeking to minimize the possibility that “admiralty rules or procedures will govern a

case, to the disadvantage of state law, when admiralty's purpose does not require it.” Id. The

holding of Sisson, as restated by Grubart, is the prevailing test for admiralty tort jurisdiction. In

both cases, the Supreme Court neither expressly mentioned or cited to the Richardson decision,

which lead other courts to believe that the decision was no longer good law. In re Bernstein, 81 F.

Supp. 2d 176, 181, 2000 A.M.C. 760, 765 (D. Mass. 1999).

Although the Supreme Court found the issue to be a moot question in both cases,

commentators suggest that by granting writs, the Court indicated a desire to “re-consider its

precedent in light of its redefining of admiralty tort jurisdiction.” Arthur A. Crais, Jr., The

Limitation of Shipowner's Liability Act As an Independent Basis for Federal Jurisdiction?, 17 LOY.

MAR. L.J. 205, 236–37 (2018). Proponents for the notion that the Limitation Act is an independent

basis for admiralty jurisdiction are few and authority for this premise is scant. Since 1979, every

Court of Appeals to consider the issue presented here has reached an identical result. Carter v.

Allstate Ins. Co., 743 F. Supp. 2d 103, 113, 2010 A.M.C. 2574, 2589 (D. Conn. 2010). At least

seven U.S. Courts of Appeals, and numerous district courts, hold that the Act is not an independent

basis for admiralty jurisdiction. The District Court of Massachusetts is the only federal court to

ever hold otherwise. In re Bernstein, 81 F. Supp. 2d 176 (D. Mass. 1999).

In In re Bernstein, the court considered whether admiralty jurisdiction existed over a

petition for limitation of liability based on a motorboat crash that occurred on non-navigable

11

waters. Id. at 179. Much like the Fourth Circuit in the instant case, the Bernstein court concluded

that “it ha[d] no choice but to heed the rule of stare decisis and follow Richardson.” Id. at 182.

However, these courts overlooked the fact that the Richardson holding was specifically limited to

a petition based on a collision between a vessel on navigable waters and an object on land.

Richardson, 222 U.S. at 99-100.

Although this Court’s silence in Sisson and Grubart signaled to some that there remains a

possibility that the Limitation Act provides an independent basis for admiralty jurisdiction, every

U.S. Circuit Court confronted with the issue in the years following Sisson held that the Act does

not. See Seven Resorts, Inc. v. Cantlen, 57 F.3d 771, 773, 1995 A.M.C. 2087, 2091 (9th Cir.1995)

(“[W]e view Richardson as a historical anomaly that cannot be fairly reconciled with modern

admiralty jurisdiction, and conclude that the jurisdiction conferred by the Act remains coextensive

with that of modern admiralty and maritime jurisdiction.”); Sea Vessel, Inc. v. Reyes, 23 F.3d 345,

348 n. 6, 1994 A.M.C. 2736, 2740 (11th Cir.1994) (“The district court correctly concluded that

the Limitation of Liability Act does not provide an independent basis for admiralty jurisdiction.”);

David Wright Charter Serv. of N. Carolina, Inc. v. Wright, 925 F.2d 783, 785, 1991 A.M.C. 2927,

2930 (4th Cir.1991) ([W]e conclude that the Limitation Act is not a source of admiralty

jurisdiction. Rather it is a procedure that may be invoked when general admiralty and maritime

jurisdiction has been established.”); Three Buoys Houseboat Vacations U.S.A. Ltd. v. Morts, 921

F.2d 775, 780, 1991 A.M.C. 1356, 1363 (8th Cir. 1990) (“[T]he Act's reach is only coextensive

with that of admiralty jurisdiction. Where admiralty jurisdiction fails for want of a navigable

waterway, so does the reach of the Act.”); Guillory v. Outboard Motor Corp., 956 F.2d 114, 115,

1993 A.M.C. 605 (5th Cir.1992) (“The Limitation of Liability Act does not confer jurisdiction

upon federal courts. That must come from our admiralty jurisdiction under [the constitution] and

12

28 U.S.C. § 1333(1).”); MLC Fishing, Inc. v. Velez, 667 F.3d 140, 144, 2012 A.M.C. 485, 489 (2d

Cir. 2011) (“[W]e hold that the Limitation Act does not confer federal admiralty jurisdiction over

any action not already encompassed within the Extension Act's jurisdictional grant.”).

If “the basic rationale for federal admiralty jurisdiction is protection of maritime commerce

through uniform rules of decision,” then this Court must reverse the Fourth Circuit’s holding in

the present matter. Grubart, 513 U.S. at 544. If not, this rare instance of appellate uniformity

amongst the major maritime law jurisdictions will face a state of upheaval and confusion.

B. Congress did not intend for the Limitation Act to extend admiralty jurisdiction beyond the scope established by general maritime law.

From the beginning, Article III, § 2 of the U.S. Constitution granted the federal judiciary

the power to rule on “all cases of admiralty and maritime Jurisdiction.” U.S. Const. art. III, § 2, cl.

1. Congress recognized this judicial power and enacted 28 U.S.C. § 1333, giving district courts

original jurisdiction of “[a]ny civil case of admiralty or maritime jurisdiction . . . .” Romero v. Int’l

Terminal Operating Co., 358 U.S. 354, 1959 A.M.C. 832 (1959); 28 U.S.C. § 1333(1). In 1851,

Congress first enacted legislation limiting shipowners' liability to aid American shipowners and

place them in a favorable position in the competition for world trade. Maryland Cas. Co. v.

Cushing, 347 U.S. 409, 413–14, 1954 A.M.C. 837-841 (1954). Congress designed the Limitation

Act to induce financial commitments in the shipping industry by mitigating the threat of “vast,

unlimited liability as a result of a maritime disaster.” Id. at 414. However, neither the original

Limitation Act nor any of its subsequent amendments ever contained jurisdictional grants. Crais,

supra, at 236–37.

The Act is consistently interpreted by courts to provide a procedure, not a basis for federal

jurisdiction, “primarily because its nature is that of a defense.” In re Madison Coal & Supply Co.,

321 F. Supp. 2d 809, 811 (S.D.W. Va. 2003). Thus, as courts have observed, “[w]hether the

13

Limitation Act independently confers admiralty jurisdiction . . . is ultimately a question of statutory

interpretation.” Carter v. Allstate Ins. Co., 743 F. Supp. 2d 103, 111, 2010 A.M.C. 2574 (D. Conn.

2010) (internal citations omitted).

1. The Limitation Act is procedural and the language of the statute does not contain any jurisdictional grant.

As originally enacted, the Limitation Act did not specify any procedures for its

enforcement, but provided that any party could take the “appropriate proceedings in any

court.” Norwich Co. v. Wright, 80 U.S. 104, 123, 1998 A.M.C. 2061, 2072 (1871). The 1851 Act

was not a “model of clarity” and was “badly drafted even by the standards of the time.” Lewis &

Clark Marine, Inc., 531 U.S. 438, 447, 2001 A.M.C. 913, 919 (2001) (citing, 2 T. Schoenbaum,

Admiralty and Maritime Law 299 (2d ed. 1994)) (internal quotation marks omitted). Having

created a right to seek limited liability, Congress failed to provide procedures for determining this

entitlement. Id. Nearly 20 years after its enactment, this Court finally had the opportunity to review

the Act in Norwich Co. v. Wright. The Norwich Court deemed that the Act passed by Congress

was “incapable of execution” without further instructions to courts. Norwich Co., 80 U.S. at 123.

This Court later explained that the scheme “was sketched in outline” by the Act, and “the

regulation of details as to the form and modes of proceeding was left to be prescribed by judicial

authority.” Lewis & Clark Marine, 531 U.S. at 447 (internal citations omitted).

As amended today, the Act provides that “[t]he owner of a vessel may bring a civil action

in a district court of the United States for limitation of liability” (46 U.S.C. § 30511(a)) for all

“claims, debts, and liabilities” (Id. § 30505(a)) “arising from any embezzlement, loss, or

destruction of any property, goods, or merchandise shipped or put on board the vessel, any loss,

damage, or injury by collision, or any act, matter, or thing, loss, damage, or forfeiture, done,

occasioned, or incurred, without the privity or knowledge of the owner.” Id. § 30505(b).

14

In MLC Fishing, Inc. v. Velez, the Second Circuit analyzed the above language and found

“no indication that Congress intended the Limitation Act to constitute a jurisdictional grant.” 667

F.3d 140, 143, 2012 A.M.C. 485, 489 (2d Cir. 2011) (citing Carter v. Allstate Ins. Co., 743 F.

Supp. 2d at 111). It first noted that, as a matter of construction, the statute does not contain the

word “jurisdiction.” Carter, F. Supp. 2d at 112. Congress generally uses unambiguous language

when it intends to grant subject-matter jurisdiction to the federal district courts. Id.; see 28 U.S.C.

§ 1346(b) (providing that “the district courts . . . shall have exclusive jurisdiction of civil actions

on claims against the United States”); 29 U.S.C. § 185(a) (providing that suits for violation of labor

contracts “may be brought in any district court of the United States having jurisdiction of the

parties, without respect to the amount in controversy or without regard to the citizenship of the

parties”).

The court also considered the placement of § 30511 within the United States Code to be a

relevant factor. Carter, 743 F. Supp. 2d at 112 (citing Florida Dept. of Revenue v. Piccadilly

Cafeterias, Inc., 554 U.S. 33, 51–53 (2008)). The court pointed out that grants of subject-matter

jurisdiction to federal courts are ordinarily codified in Title 28, but 30511(a) is codified in Title

46, which contains substantive admiralty and maritime law provisions. Id. at 112. The court

concluded that “[a]bsent such extratextual evidence of congressional intent, and absent any

evidence in the text itself that Congress intended the Limitation Act as a limitless conferral of

jurisdiction over any and all petitions filed in conformance with the Limitation Act,” the Act should

not be read as an implied grant of jurisdiction over tort on non-navigable waters. Id. As as a matter

of statutory interpretation, the Limitation of Liability Act does not confer jurisdiction upon federal

courts.

15

2. The intent of Congress will not be furthered by expanding admiralty jurisdiction to cover vessels on non-navigable waters.

In early U.S. history, the courts, as well as Congress, were reluctant to extend admiralty

jurisdiction “beyond the ebb and flow of the tide” due to the restriction on trial by jury when a

court exercised solely admiralty jurisdiction over a matter. Crais, supra at 229. The judiciary and

Congress were concerned that expanding admiralty jurisdiction would deprive litigants of their

Seventh Amendment right to trial by jury which was exercised in cases involving vessels in state

waters. Id. In Richardson v. Harmon, the Supreme Court extended the scope of limitation of

liability to damage occurring on land, with the aim of furthering the purpose of the Limitation Act

— to improve the competitive posture of the American Shipping Industry. Lewis Charters, Inc. v.

Huckins Yacht Corp., 871 F.2d 1046, 1053, 1989 A.M.C. 1521, 1531 (11th Cir. 1989). However,

the reasons for the Supreme Court's liberal construction of the Act in Richardson no longer exist

today. See Maryland Casualty Co. v. Cushing, 347 U.S. 409, 437, 1954 A.M.C. 837 (1954) (Black,

J., dissenting) (“Judicial expansion of the Limited Liability Act at this date seems especially

inappropriate. Many of the conditions in the shipping industry which induced the 1851 Congress

to pass the Act no longer prevail.”).

In 1870, the Supreme Court defined “navigable waters” for the purpose of determining

admiralty jurisdiction, establishing the principle that waters which are navigable in fact are

navigable in law. The Daniel Ball, 77 U.S. 557, 2000 A.M.C. 2106 (1870). Under general maritime

law, admiralty jurisdiction extends to those waters that are “used, or . . . susceptible of being used,

in their ordinary condition, as highways for [interstate or foreign] commerce.” Id. at 563. In

contrast to the AEA, the plain language of the Limitation Act does not include the words

“navigable waters.” Despite this omission, no decision of this Court has ever found admiralty

jurisdiction in a case that lacked a connection to navigable waters. Since the Flamingo’s berth was

16

surrounded by a cofferdam, that portion of the river did not constitute “navigable waters” for

purposes of establishing admiralty jurisdiction. R. 13a.

Although not addressed in the Fourth Circuit’s opinion in the instant case, the Fourth

Circuit itself has already ruled on this precise issue in David Wright Charter Serv. of N. Carolina,

Inc. v. Wright, where it ultimately “conclude[d] that the Limitation Act is not a source of admiralty

jurisdiction.” 925 F.2d 783, 785 (4th Cir. 1991) (per curiam). In Wright, the vessel in question was

placed on blocks to undergo repairs in a land-based shed located 75 feet from the water. Id. at 784.

Five months later, the vessel caught fire and exploded causing personal injury and property

damages. Id. Although jurisdiction was alleged under both § 1333 and the Limitation Act, the

Fourth Circuit found that “neither Richardson v. Harmon nor the Extension of Admiralty

Jurisdiction Act purports to provide admiralty jurisdiction for torts involving vessels that are not

on navigable waters.” Id.

The court went on to clarify that the statute “is a procedure that may be invoked when

general admiralty and maritime jurisdiction has been established.” Id. Thus, the requirement of

navigability is a fundamental threshold to admiralty jurisdiction. Additionally, the Wright decision

is uniform with most Circuit Court interpretations of the Act which hold that limitation is only

available when the incident occurs on a navigable waterway. See Three Buoys Houseboat

Vacations U.S.A. Ltd. v. Morts, 921 F.2d 775, 1991 A.M.C. 1356 (8th Cir. 1990).

Since non-navigable waters cannot be used to engage in international or interstate

waterborne commercial activity, no federal purpose is advanced by extending federal admiralty

jurisdiction over waters which are non-navigable. Crais, supra at 231. In the words of the Eighth

Circuit, the Respondent “is attempting to misuse the Act to defeat what could be liability . . .

without the redeeming feature of encouraging maritime commerce on the high seas and navigable

17

waterways.” Three Buoys Houseboat Vacations, 921 F.2d at 780. Just as any attempt by a state to

extend its law to disputes within admiralty jurisdiction is unconstitutional, so would any attempt

to extend admiralty jurisdiction and its substantive law to bodies of water which do not pass the

navigability test for admiralty jurisdiction. Crais, supra at 232.

The Supreme Court’s holdings make clear that “the basic rationale for federal admiralty

jurisdiction is protection of maritime commerce through uniform rules of decision.” Grubart, 513

U.S. at 544 (emphasis added). The U.S. Circuit Courts are undoubtedly uniform in this respect.

This Court should view Richardson for what it was: a prophylactic measure to further

Congressional intent and encourage investment in maritime shipping and commerce. In light of

the AEA and subsequent Supreme Court precedents, no circuit court has found that Richardson is

controlling law on the issue of whether the Limitation Act provides an independent basis for

admiralty jurisdiction. Hickam v. Segars, 905 F. Supp. 2d 835, 841 (M.D. Tenn. 2012). To the

extent that Richardson conveys an independent grant of admiralty jurisdiction, this Court should

overrule it. As a result of the Supreme Court’s disregard for Richardson in both Sisson and

Grubart, the overwhelming disapproval by the Courts of Appeals, and the policy reasons behind

the Limitation Act, the Limitation Act cannot be an independent basis for admiralty jurisdiction.

II. IF THIS COURT DETERMINES THAT THIS IS AN ADMIRALTY CASE, THEN THE FOURTH CIRCUIT IMPROPERLY DISMISSED PETITIONER’S APPEAL BECAUSE THE COURT HAD APPELLATE JURISDICTION UNDER 28 U.S.C. § 1292(a)(3).

The Fourth Circuit legally erred when it dismissed Petitioners’ appeal from the United

States District Court for South Carolina's decision allowing Respondent to limit its liability to the

minimal amount of $1,000.00. R. 1a. This Court should reverse the Fourth Circuit’s dismissal for

three reasons. First, as a practical matter, the district court determined that Respondent would not

bear any actual liability. Second, the Fourth Circuit limited itself to the strict language of §

18

1292(a)(3) when the legislative history reveals a broader intent for the statute. Finally, the

Respondent does not meet the statutory requirements of the Limitation of Liability Act.

Under 28 U.S.C. § 1292(a)(3), appellate courts have jurisdiction over “interlocutory

decrees of such district courts or the judges thereof determining the rights and liabilities of the

parties to admiralty cases in which appeals from final decrees are allowed.” Appellate jurisdiction

under § 1292(a)(3) consists of three elements: (1) the appeal is an interlocutory decree of a district

court; (2) the case itself is an admiralty case; and (3) the lower court determined the rights and

liabilities of the parties. The first element is satisfied because the district court never formally

resolved whether Respondent is liable to Petitioner for damages suffered, and thus never handed

down a final decision in this case. R. 3a. If this Court determines that the Limitation Act provides

an independent basis for admiralty jurisdiction, the second element is satisfied. The final element

is also satisfied because when the district court reviewed the evidence and made it clear to the

Fourth Circuit that Respondent “will not bear any real liability” for the Petitioners’ injuries, it

therefore determined the rights and liabilities of the parties. R. 5a.

Despite all of this, the Fourth Circuit did not find that a determination by the district court

on Respondent’s ability to limit its liability fit “the rights and liabilities of the parties” language of

§ 1292(a)(3). R. 6a. While most courts have narrowly construed § 1292(a)(3), the Ninth Circuit

pointed out in Wallis v. Prince Cruises, Inc. that many courts have read the statute “too

narrowly”—much like the Fourth Circuit did in the instant case. 306 F.3d 827, 834, 2002 A.M.C.

2270, 2285 (9th Cir. 2002). The plain language of § 1292(a)(3) does not expressly indicate what

constitutes a determination of rights and liabilities, resulting in “chaotic” national jurisprudence.

R. 5a. Since courts continue to differ in both their interpretation and application of 28 U.S.C. §

1292(a)(3), there exists a need for this Court to establish a uniform rule.

19

A. By granting Respondent’s petition to limit its liability, the district court determined the rights and liabilities of the parties.

At one point in time, many courts were of the view that the correct interpretation of

“determining the rights and liabilities of the parties” language from §1292(a)(3) meant “deciding

the merits of the controversies between them.” St. Louis Shipbuilding & Steel Co. v. Petroleum

Barge Co., 249 F.2d 905, 907, 1958 A.M.C. 506, 509 (8th Cir. 1957) (quoting In re Wills Lines,

Inc., 227 F.2d 509, 510, 1956 A.M.C. 298, 299 (2d Cir. 1955)). Today, many courts have

interpreted this as excluding appeals from a decision to limit liability. Under the Fifth Circuit’s

interpretation of 28 U.S.C. § 1292(a)(3), a determination that one party may limit its liability is

not a determination of liability. See Bucher-Guyer AG v. M/V Incontrans Spirit, 868 F.2d 734 (5th

Cir. 1989). However, the Ninth Circuit has stated that to determine whether a ruling is decided on

the merits, the courts should consider the “‘financial realities . . . as well as ‘other practical

matter[s].’” Barnes v. Sea Haw. Rafting, LLC, 889 F.3d 517, 528, 2018 A.M.C. 1939, 949 (9th

Cir. 2018) (quoting All Alaskan Seafoods, Inc. v. M/V Sea Producer, 882 F.2d 425, 428, 1989

A.M.C. 2935, 2938 (9th Cir. 1989) and Kesserling v. F/T Arctic Hero, 30 F.3d 1123, 1125, 1995

A.M.C. 539, 540 (9th Cir. 1994)). The Ninth Circuit’s approach recognizes that “if a district court

holds that a limitation of liability clause is valid and applicable, that determination will . . . usually

end the case” because the trial costs and attorney fees necessary to pursue the matter any further

will far outweigh the limited recovery. Wallis v. Prince Cruises, Inc., 306 F.3d 827, 834, 2002

A.M.C. 2270, 2285 (9th Cir. 2002).

The Fourth Circuit believed that affirming the district court’s decision on Respondent’s

entitlement to limit its liability would “effectively end the case.” R. 5a. Rather than definitively

rule on the merits of the case, the Fourth Circuit chose not to exercise jurisdiction. R. 6a. Looking

at the realities and practicalities of the instant case, a ruling that Respondent could limit its liability

20

to $1,000.00 has determined that Respondent will “not bear any real liability” to the Petitioners.

R. 5a. For that reason, the Fourth Circuit stated in its opinion that “if [the court] could approach

the issue afresh, [it] would probably agree with the Ninth Circuit.” R. 5a. Nonetheless, the Fourth

Circuit prolonged the case, which created inefficiencies for the judicial system and for the parties,

by requiring more time and money to be spent on a matter that should have been resolved at the

Fourth Circuit. To ignore the Ninth Circuit’s approach is to ignore the practical nature of §

1292(a)(3).

The Fifth Circuit, much like the Fourth Circuit in the instant case, held that a determination

limiting liability is not the same as determining liability vel non. Bucher-Guyer AG, 868 F.2d 734

(5th Cir. 1989). While these determinations differ from a technical standpoint, both accomplish

the same goal: a determination regarding the liability of a party. The statute does not preclude a

determination limiting liability from being brought in an appeal under § 1292(a)(3). Evidenced by

the broad statutory language, Congress gave the courts discretion to include situations such as the

instant case.

In the instant case, the appeal is from a decision that in fact dealt with the Respondent’s

liability. Rather than proceed to Phase Two of the bifurcated trial, the Petitioners have exercised

their right under § 1292(a)(3) to an interlocutory appeal to challenge the district court decision that

the Respondent may limit its liability. While this Court has not directly addressed the issue on

whether a determination on the limitation of liability is a determination of liability itself, this Court

should adopt the view of the Ninth Circuit because it is the more rational and practical

interpretation of § 1292(a)(3).

21

B. The legislative history and intent behind 28 U.S.C. § 1292(a)(3) show that Congress envisioned the exception applying in a broader context than what most courts have applied.

When there is no more context or supplemental language beyond the plain words of the

statute, then courts should engage in more practical inquires and approaches to the cases before

them. The approach of the Ninth Circuit emphasizes the importance of the legislative history when

reading the plain language of § 1292(a)(3). The Ninth Circuit is not reading § 1292(a)(3) too

broadly as the Respondent might suggest, but rather is cautioning against reading the statute too

narrowly. Wallis, 306 F.3d at 834.

Generally, courts have appellate jurisdiction only over appeals arising from “final

decisions” of lower courts. 28 U.S.C. § 1291. Prior to 1926, issues of liability and damages in

admiralty cases were bifurcated into separate proceedings. City of Fort Madison v. Emerald Lady,

990 F.2d 1086, 1088, 1993 A.M.C. 2091, 2094 (8th Cir. 1993). In an effort to alleviate what would

often be “long, burdensome, and perhaps unnecessary” damage hearings, Congress created several

exceptions to this final judgment rule by enacting 28 U.S.C. § 1292 in 1926. Id. An interlocutory

appeal under § 1292(a)(3) is intended to “avoid protracted and expensive litigation.” Medomsley

Steam Shipping Co. v. Elizabeth River Terminals, Inc., 317 F.2d 741, 743, 1963 A.M.C. 1444,

1446 (4th Cir. 1963) (internal citations omitted). Parties can exercise an interlocutory appeal in

between the two proceedings to ensure the status of liability before spending time and money on

what could be an irrelevant damage proceeding.

In the instant case, the district court bifurcated the trial and issued an opinion after Phase

One. R. 14a. Absent an appeal to the Fourth Circuit, the Petitioners and the Respondent will be

subject to a lengthy trial with court costs and attorney fees that will far exceed the maximum

22

$1,000.00 possible recovery. An appeal at this stage in the litigation is not only necessary but also

financially beneficial for both Petitioner and Respondent.

The Fourth Circuit’s dismissal of the appeal in the instant case is consistent with its

previous decision in Evergreen International (USA) Corp. v. Standard Warehouse, 33 F.3d 420,

425, 1995 A.M.C. 635 (4th Cir. 1994). In Evergreen, the court held that § 1292 should be

construed narrowly, finding that a determination limiting liability was not enough to properly

invoke appellate jurisdiction and did not equate to a determination of liability under the statute. Id.

However, the Fourth Circuit failed to address the procedural distinctions between the present facts

and the Evergreen decision. Even in Evergreen, the court acknowledged that Congress intended

for appellate courts to exercise jurisdiction under § 1292(a)(3) when “an appeal prior to the final

disposition of the case in the district court is appropriate, and the dangers and inefficiencies

inherent in interlocutory appeals are outweighed by the benefits to be gained by an immediate

consideration of the disposition of the particular matter in the court below.” Id. at 423-424.

Nonetheless, a court need not go further than the plain language of the statute to see how it can

have broad effects.

The Ninth Circuit’s approach is not to construe the statute broadly but rather broader than

how most courts have applied it when a strong enough practical case for hearing an interlocutory

appeal presents itself. Although the Fifth Circuit stated that § 1292 should be construed narrowly,

“the provision should be applied to achieve its original purpose of allowing the final determination

of liability among the parties before the computation of damages.” Todd Shipyards Corp. v. Auto

Transp., S.A., 763 F.2d 745, 751, 1987 A.M.C. 1831, 1840 (5th Cir. 1985). The Ninth Circuit’s

interpretation and application accomplish what Congress intended when enacting § 1292(a)(3).

23

Since limitation hearings are still common practice in admiralty cases, Congress sought to

encourage appeals on issues such as the instant case. See Wallis v. Prince Cruises, Inc., 306 F.3d

827, 834, 2002 A.M.C. 2270, 2274-76 (9th Cir. 2002); Carman Tool & Abrasives, Inc. v.

Evergreen Lines, 871 F.2d 897, 898, 1989 A.M.C. 913, 914 (9th Cir. 1989). If appeals are not

allowed in these circumstances where there has only been a limitation hearing regarding liability,

then “such a construction would make interlocutory appeals impossible in many admiralty cases”

which is often where these appeals are needed the most. Wallis, 306 F.3d 827, 834, 2002 A.M.C.

2270, 2274-76 (9th Cir. 2002). If Congress intended to exclude a limitation of liability proceeding

from an interlocutory decree, it could have done so when drafting § 1292(a)(3). Thus, many courts

have construed § 1292(a)(3) too narrowly by denying interlocutory appeals in cases where a

defendant’s liability vel non has not yet been determined. Allowing the Petitioners’ interlocutory

appeal to be heard would accomplish the original goal of the statue by alleviating any unnecessary

burdens or inefficiencies.

C. Respondent is not entitled to limit its liability under the Limitation of Liability Act because the requirements for the statute have not been met.

If this Court rules that the Fourth Circuit did have appellate jurisdiction under 28 U.S.C. §

1292(a)(3), then the Court should instruct the Fourth Circuit to review Respondent’s “vessel”

status per the Limitation Act. Under 46 U.S.C. § 30502, the Limitation of Liability Act only applies

to “seagoing vessels and vessels used on lakes or rivers or in inland navigation.” Respondent’s

floating restaurant, the F/V Flamingo (“the Flamingo”), does not meet these requirements and is

therefore not entitled to a limitation of liability under the Act.

The Flamingo fails to satisfy the fundamental requirements of maritime law jurisdiction.

First and foremost, the Flamingo was surrounded by a cofferdam, and thus was not in a portion of

the river that constituted “navigable waterways.” R. 11a. In addition to its location on a non-

24

navigable waterway, the Flamingo was a stationary restaurant, which bears no resemblance to a

traditional maritime commerce activity. “To permit an alleged tortfeasor to circumvent the

requirement that the tort bear a connection to traditional maritime activity simply by asserting a

right to limit liability would eviscerate the nexus test.” Complaint of Sisson, 867 F.2d 341, 350,

1989 A.M.C. 609, 624 (7th Cir. 1989).

Likewise, the district court erred in concluding that the Flamingo was a “seagoing vessel[]”

or at least a “vessel[] used on lakes or rivers or in inland navigation” at the time of the incident. 46

U.S.C. § 30502. Since the cofferdam prevented the Flamingo from floating into other portions of

the river, the Flamingo cannot be considered to be “seagoing” per § 30502 of the Limitation of

Liability Act. Additionally, the Flamingo was not used in any way for navigation on lakes or rivers

for nearly seven years from the time it was converted into a restaurant until the time of the incident

involved in the instant case. Its full-time purpose was to be a seafood restaurant and to not engage

in any activity on waterways whatsoever.

Petitioners pursued an interlocutory appeal to challenge Respondent’s entitlement to limit

its liability under the Limitation Act. The Petitioners now respectfully ask this Court to establish

a uniform rule on § 1292(a)(3) that is more consistent with the Ninth Circuit’s approach and to

send this case back down to the Fourth Circuit so that they may properly review the legal errors

concluded by the district court.

25

CONCLUSION

For the above reasons, the judgment of the Fourth Circuit Court of Appeals should be

reversed.

Respectfully submitted,

Team E Counsel for Petitioners

A-1

APPENDIX A: APPENDIX TO PETITION FOR CERTIORARI

(materials omitted pursuant to Competition Rule 3(G))