Charles R. Hassinger, Administrator of the Estate of Stanleyh. Hassinger, Iii; Janet Mead Proctor, Administratrix Ofthe Estate of Robert Diego Proctor and James B. Powell,administrator of the Estate of Stuart L. Powell, Appellees, v. Tideland Electric Membership Corporation, Defendant,andcoleman Company, Inc. and Coast Catamaran Corporation, Appellants.charles R. Hassinger, Administrator of the Estate of Stanleyh. Hassinger, Iii; Janet Meade Proctor, Administratrix Ofthe Estate of Robert Diego Proctor and James B. Powell,administrator of the Estate of Stuart L. Powell, Appellees, v. Tideland Electric Membership Corporation, Appellant,andcoleman Company, Inc. and Coast Catamaran Corporation, Defendants, 781 F.2d 1022 (4th Cir. 1986)

"On the other hand, in Sir Henry Constable's Case, 5 Coke, 106, etc., it was expressly adjudged, as has been already stated, that the soil, on which the sea ebbs and flows, may be parcel of a manor, and that, when the sea flows and has plenitudinem maris, the admiral shall have jurisdiction of every thing done on the water, between the high and low water mark, by the ordinary and natural course of the sea; and yet, when the sea ebbs, the land may belong to a subject, and every thing done on the land, when the sea is ebbed, shall be tried at common law, for it is then parcel of the country, and infra corpus comitatus; and so, between the high and low water mark, the common law and the admiralty have divisum imperium ... Until some strong reason can be assigned for a distinction, it would seem more conformable to law and nature to hold, that the bodies of counties, bounding on navigable waters, are limited at all times by the line of the sea tide; and this is the doctrine asserted by the admiralty."

Id. at 428.

A brief look at a few American cases shows that the alleged rule of Sir Henry Constable's Case does not exist here.

The principal case is The Steamship Jefferson, 215 U.S. 130, 30 S. Ct. 54, 54 L. Ed. 125 (1909). There, the Supreme Court held that admiralty jurisdiction applied to a ship in dry dock. To reach this result, the Court first found that a vessel moored to a wharf from which the tide had fully receded "would not cease to be a subject within the admiralty jurisdiction merely, because for a short period by operation of nature's laws, water did not flow about her." Id. at 142, 30 S. Ct. at 58. Because a vessel at a dry wharf was still subject to admiralty jurisdiction, a vessel in a dry dock was too.

The Steamship Jefferson was not a departure from prior American law. Indeed, in Dailey v. City of New York, 128 F. 796 (S.D.N.Y. 1904), the district court held that the owner of a scow could sue in admiralty for damages to his vessel that occurred after the tide had receded. In that case, five scows had entered at high tide a semi-enclosed area in the East River. When the tide receded, four scows came to rest safely on the earth but one settled on a hump and was damaged. The owner of the damaged scow sued the city in admiralty. The court held that even though the tide had receded at the time of the damage, the area was "navigable water" and admiralty jurisdiction existed.

The modern case of United States v. Stoeco Homes, Inc., 498 F.2d 597 (3rd Cir. 1974), cert. denied 420 U.S. 927, 95 S. Ct. 1124, 43 L. Ed. 2d 397 (1975), also sheds light on the meaning of the term "navigable water." In that case, the United States sued to enjoin a developer from developing an area that had been tidal marsh until 1927. One issue in the case was whether the Rivers and Harbors Appropriation Act of 1899 (which prohibited the discharge of any refuse matter into "navigable water" without permission of the Secretary of the Army, 33 U.S.C. § 407), covered tidelands. The court first found that Congress intended that the term "navigable water" in the Act have the same meaning it had in admiralty at the time the Act was passed. Stoeco, 498 F.2d at 609. The court then held that the admiralty definition of "navigable water" in tidal areas included all areas within the "ebb and flow of the tide" and was not limited to "areas of actual or reasonably potential navigability." Id. at 610.

No cases or statutes since the turn of the century appear to have restricted the scope of the term "navigable water." Admiralty jurisdiction in America therefore extends to all areas within the ebb and flow of the tide, regardless of whether those areas are actually covered by water at the time of the alleged event. And the best determination of "the land which is actually covered by the tides most of the time" is the mean high water mark. Borax Consolidated, Ltd. v. City of Los Angeles, 296 U.S. 10, 26, 56 S. Ct. 23, 31, 80 L. Ed. 9 (1935); see also Leslie Salt Co. v. Froehlke, 578 F.2d 742 (9th Cir. 1978), where the Court observed, 578 F.2d at 750, that after Borax, "the test of the mean high water mark became the inveterate standard to be applied in limiting federal authority over navigable waters."

It follows that "navigable water" and thus the boundary of admiralty jurisdiction in tidal areas does not ebb and flow with the tide but extends to the mean high water mark at all times, because " [w]hether, at the time the injury was sustained, [libellant] ... was landward or seaward of the actual edge of the water, his rights should be the same, and they should be determinable in the same court." Hastings v. Mann, 340 F.2d 910, 912 (4th Cir. 1965), cert. denied 380 U.S. 963, 85 S. Ct. 1106, 14 L. Ed. 2d 153.

This holding alone does not, however, completely settle the situs issue. Appellants further argue that even if the shoreward boundary of admiralty jurisdiction in tidal areas is the mean high water mark, admiralty jurisdiction should not exist in this case because the decedents were standing on "extensions of land" (the beach or the bottom of the lake) when the accident occurred.

The extension of land doctrine prevents recovery in admiralty for damages to "piers, docks, wharves and similar structures extending over navigable waters" and for "personal injuries suffered by persons while upon such structures ... unless ... caused by a vessel on navigable waters." Hastings v. Mann, supra, at 911 (emphasis added). The doctrine does not apply here because no structure was involved and because the harm was caused by a vessel on "navigable water."

Because the admiralty definition of "navigable water" in tidal areas includes the area up to the mean high water mark, and because the "extension of land" doctrine does not apply in this case, the district court correctly found that the situs requirement of Executive Jet was satisfied.

To meet the nexus requirement of Executive Jet, the alleged wrong must bear a "significant relationship to traditional maritime activity." 409 U.S. at 268, 93 S. Ct. at 504. The alleged wrongs of Tideland in this case are essentially that it negligently placed an unreasonably low, uninsulated power line over the "navigable water" of Silver Lake, North Carolina, and that it placed no warning signs, signals, or buoys on or around the power line to alert sailors to the danger (A-27 to 30, A-237 to 242). The alleged wrongs of Coleman and Catamaran are mainly that they negligently designed, manufactured and sold a catamaran with an all metal, uninsulated mast, that they failed to put non-metal parts on the boat with which it could be handled, and that they failed to warn of the danger of electrocution if the mast of the boat touched a power line (A-33 to 37, A-242 to 245).

Four factors should be considered in determining whether the alleged wrongs satisfy the nexus test of Executive Jet:

(1) the functions and roles of the parties;

(2) the type of vehicles and instrumentalities involved;

(3) the causation and type of injury; and

(4) traditional concepts of the role of admiralty law.

Oman v. Johns-Manville Corp., 764 F.2d 224, 230 (4th Cir. 1985); see also Kelly v. Smith, 485 F.2d 520, 526 (5th Cir. 1973), cert. denied 416 U.S. 969, 94 S. Ct. 1991, 40 L. Ed. 2d (1974).

The district court properly considered these four factors in finding that the alleged wrongs of appellant Tideland met the nexus requirement. It stated:

The role of the decedents at the time of the accident was that of a sailor attempting to remove a vessel from navigation; defendant's role was that of owner and operator of a power line, which proved to be a dangerous impediment to this navigational function. The instrumentalities involved are clearly the mast of the vessel and the overhead electric power line; the contact between these instrumentalities resulted in decedents' deaths by electrocution. The act complained of with respect to defendant Tideland is the negligent placing of a dangerous impediment--a power line--to navigation. Assuming navigation (as the court finds exists herein), " [s]uch activity ... [is] considered as having a significant relationship to traditional maritime activity within the meaning of Executive Jet."

Admiralty law traditionally has concerned itself with the protection of sailors from injury or death caused by obstructions to navigation--this concern is the basis of the court's decision herein

(A-479).

The district court's finding is not "clearly erroneous" and therefore should be upheld. See Eaton v. Dorchester Development, Inc., 692 F.2d 727, 732 (11th Cir. 1982).

Tideland argues that the district court erred in finding that the power line was an obstruction to navigation. However, the district court's conclusion that, at the time and place of the accident, the power line was seaward of the mean high water mark is supported by substantial evidence (see Shafer Affidavit, A-136; Shafer Deposition, A-181 to 182; Burks Affidavit, A-119; Smith Affidavit and Photograph, A-139 and EA-3) and controverted by none. Because, among other things, the power line passed over "navigable water" and was a potential obstruction to navigation, admiralty jurisdiction existed.

As to appellants Catamaran and Coleman, the four factor nexus requirement is also satisfied:

First, Catamaran's and Coleman's roles at the time of the accident were those of manufacturer, marketer, supplier, and seller of catamarans. Hassinger Complaint p 8 (A-23), Powell Complaint p 6 (A-231).

Second, such vehicles are obviously maritime.

Third, the injury was caused by an allegedly defective mast which, to paraphrase Oman, supra, at 229, allowed electricity to spread through the vessel and electrocute three persons.

Fourth, one of the purposes of admiralty law is to protect sailors from defective equipment while they are engaged in maritime activity. See, e.g., Richards v. Blake Builders Supply, Inc., 528 F.2d 745 (4th Cir. 1975); accord Oman v. Johns-Manville Corp., supra, at 229; Austin v. Unarco Industries, Inc., 705 F.2d 1, 10-11 (1st Cir. 1983).

The wrongs of Coleman and Catamaran, as alleged, therefore satisfy the nexus test of Executive Jet.

The district court correctly held that admiralty jurisdiction extends at all times in tidal areas to the mean high water mark. Its unchallenged findings that the decedents, the mast and a substantial portion of the sailboat, and the power line were below the mean high water mark are fully supported by the evidence. The court's finding that the alleged wrongs of Tideland satisfied the nexus requirement of Executive Jet is not clearly erroneous. As to appellants Catamaran and Coleman, although the district court may not have used a formal analysis in finding that their alleged wrongs satisfied the nexus requirement of Executive Jet, nevertheless, a review of the four factors of Oman shows that in fact the nexus requirement is met also as to them.

The decision of the district court is therefore AFFIRMED.