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EMERY v. ROCK ISLAND BOATWORKS

March 18, 1994

DOROTHY M. EMERY, AND NORMAN EMERY, PLAINTIFFS,
v.
THE ROCK ISLAND BOATWORKS, INC., AN ILLINOIS CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Mihm, Chief Judge.

ORDER

Pending before this Court is Defendant Rock Island Boatworks, Inc.'s Motion to Dismiss and/or for Summary Judgment with respect to Plaintiff Norman Emery's claim asserted in Count II of the Complaint. For the reasons set forth below, the Motion is Denied.

On August 10, 1992, Plaintiff Dorothy M. Emery was a passenger on the Defendant's boat, the Casino Rock Island. The Complaint alleges that Dorothy sustained injuries as a result of falling approximately eight feet through an open man-hole/scuttle hole located in an aisle or walkway for boat passengers. In Count II of the Complaint, Plaintiff Norman Emery seeks damages based on a negligence theory for loss of society and consortium caused by the injury to his wife, Dorothy.

In the Defendant's Motion, Rock Island Boatworks, Inc. argues that admiralty law applies in this case, and under a general maritime claim, the spouse of a passenger may not recover for loss of society and consortium from injuries sustained on navigable water.

Jurisdiction

The Seventh Circuit recently set forth a three part test for determining admiralty jurisdiction. The Court must determine: (1) whether the incident giving rise to the injury occurred in navigable waters; (2) whether the incident posed a potential hazard to maritime commerce; and (3) whether the incident was substantially related to traditional maritime activity. Great Lakes Dredge & Dock Co. v. City of Chicago, 3 F.3d 225, 228 (7th Cir. 1993). An affirmative answer to all three of these questions bring the claim under admiralty jurisdiction. Great Lakes, 3 F.3d at 228.

The Plaintiffs only argue that the incident giving rise to this action did not pose a potential hazard to maritime commerce, part two of the test. The Seventh Circuit stated that the question of whether a potential hazard exists does not depend on the particular facts of the case at bar. Great Lakes, 3 F.3d at 228. The Court "must assess the general features of the type of incident involved to determine whether such an incident is likely to disrupt commercial activity." Great Lakes, 3 F.3d at 228, quoting Sisson v. Ruby, 497 U.S. 358, 363, 110 S.Ct. 2892, 2896, 111 L.Ed.2d 292 (1990).

The Sisson case involved a fire that had broken out on a dock which harbored only recreational vessels. Even though there was only a remote possibility of an impact on maritime commerce, the Supreme Court found that possibility sufficient to find admiralty jurisdiction. Sisson, 497 U.S. at 363, 110 S.Ct. at 2896. The Seventh Circuit in analyzing Sisson presumed that the holding was based on the fact that a commercial vessel could have been docked at the marina or on the fact that the damage to the marina itself could have disrupted commercial maritime traffic. Great Lakes, 3 F.3d at 228. The Seventh Circuit also noted, alternatively, that "aquatic recreation is commerce. . . . [and] fires on pleasure boats generally, are likely to disrupt recreational activities on the water." Great Lakes, 3 F.3d at 228 n. 4. (emphasis in original).

In Great Lakes, the Seventh Circuit found a potential hazard to maritime commerce where pilings installed at bridge sites along the Chicago River punctured a tunnel running beneath the River. Great Lakes, 3 F.3d at 230.

Therefore, the Court finds that admiralty jurisdiction applies to this case.

Loss of Society and Maritime Law

The next issue presented in this case is whether the spouse of a injured passenger can properly bring a general maritime negligence action against the owner of a vessel seeking loss of society damages.

  In researching this issue, the Court has uncovered a
labyrinth of factual scenarios and legal theories from various
courts yielding different results on whether loss of society
claims may be brought under admiralty law. Some courts have
allowed and some courts have precluded such claims under
admiralty law depending on the legal theory and the specific
facts alleged in the case. For example, some courts have
distinguished admiralty claims brought under statutory as
opposed to common law theories, brought by seamen as opposed to
longshoremen, brought by neither seamen nor longshoremen,
brought against employers as opposed to third parties, and
brought as a result of injuries occurring in territorial waters
as opposed to on the high seas. The significance of these
various distinctions have led to courts reaching different
results on the issue of awarding loss of society damages under
admiralty law. See e.g., Miles v. Apex Marine Corp.,
498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990) (loss of society
damages not recoverable in wrongful death action brought by
non-dependent parent against vessel owner under the Jones Act
and general maritime law for injuries to her seaman son while
docked at an American port); American Export Lines, Inc. v.
Alvez, 446 U.S. 274, 100 S.Ct. 1673, 64 L.Ed.2d 284 (1980)
(loss of society damages recoverable to spouse of injured
longshoreman in personal injury action brought under general
maritime law in territorial waters); Mobil Oil Corp. v.
Higginbotham, 436 U.S. 618, 622, 98 S.Ct. 2010, 2013, 56
L.Ed.2d 581 (1978) (loss of society damages not recoverable in
wrongful death action brought under general maritime law by
widows of passengers of fatal helicopter crash 100 miles
offshore because Death on High Seas Act [DOHSA] limits damages
to pecuniary losses); Sea-Land Services, Inc. v. Gaudet,
414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974) (loss of society
damages recoverable in wrongful death action brought under
general maritime law by spouse of injured longshoreman in
territorial waters); Murray v. Anthony J. Bertucci Const. Co.,
Inc., 958 F.2d 127 (5th Cir. 1992) (loss of society damages not
allowed in personal injury action brought under general
maritime law by spouse of seaman injured in territorial
waters); Shield v. Bayliner Marine Corp., 822 F. Supp. 81
(D.C.Conn. 1993) (loss of enjoyment of life not recoverable in
action brought by representative ...

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